https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10005

Spearhead Technologies Ltd v Numeral Iot Ltd & 2 others (Civil Case E407 of 2024) [2026] KEHC 10005 (KLR) (Commercial and Tax) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10005 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Case E407 of 2024 F Gikonyo, J July 9, 2026 Between Spearhead Technologies Limited Plaintiff and Numeral Iot Limited 1st Defendant Morris Mbetsa Mweru 2nd Defendant and Shop And Deliver Limited Interested Party Ruling 1.The plaintiff/ applicant in the notice of motion dated 23.7.2024 principally under Order 40 Rules 1, 2, 4 and 8 of the Civil Procedure Rules seeks, pending the hearing and determination: - 6.a Mareva injunction preserving its relevant business assets as enumerated in the application including plants, machinery, furniture and software situated at their go-down situated at Godown No. 2, Land Reference No. 21690/3, Mombasa Road;a.A temporary injunction restraining the 1st and 2nd respondents or their agents from disposing, selling, transferring conveying or howsoever dealing with the subject relevant business assets;b.An anton pillar order permitting it access to the 1st and 2nd respondents’ godown to inspect, seize, remove, dismount and decommission the subject relevant business assets and relocate them to its godown No. 26 and 27 at L. R. No. 209/11144 ICD Business Park, Nairobi for preservation and safe custody.c.An order directing the OCS Mombasa Road Police Station and his authorized officers, servants, assigns, subordinates and security agents to provide security for due compliance with order (8). 2.The application is supported by an affidavit sworn by the applicant’s Chief Executive Officer, Jerry Teka on 23.7.2024. 3.There was no response filed by the 1st and 2nd defendants/ respondents. 4.Nevertheless, as a peremptory requirement of due process, the court must be satisfied of service of the application to ensure that the respondents were afforded an opportunity to be heard. Scarcely will the court depart from that requirement unless the circumstances of the case and the applicable law justify a departure from that principle. 5.I am aware of the special and extraordinary nature of an Anton Piller Order; court-issued injunction permitting a party to enter another party’s premises to search for, inspect and seize evidence without prior notice. I am also acutely aware that the order is a form of ‘search and seizure warrant’ issued in a civil case but whose purpose is to avert destruction of evidence. such order is ordinarily issued in intellectual property cases but also with much circumspection. 6.In this case, there is no evidence that the motion was served. Considerable time has passed by since it was filed. In addition, given the nature of the cumulative reliefs sought in the motion, it is only fair and just that the motion is served. 7.I do not find any justification to depart from the rule, audi alteram partem (hear the other side), an essential and inseparable component of the rules of natural justice requires that no person should be condemned unheard. 8.Article 50(1) of the Constitution, guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before an independent and impartial court or tribunal. It includes the right to be informed of the charge, to be represented by an advocate and to adduce and challenge evidence. 9.From a review of the record, I was unable to trace any affidavit of service demonstrating that the notice of motion was served upon the respondents. 10.The affidavits of service on record were for mention notices and a ruling notice. The respondents are entitled to the right to be heard or an opportunity to file a response to the application. Odhiambo Owiti & Co. Advocates v Dominion Farms Limited (Miscellaneous Civil Application 8 of 2019) [2022] KEHC 10147 (KLR) (18 May 2022) (Ruling) 11.It may be that service may have been done. However, there is no evidence on the court record from which the court can make such a finding. 12.The absence of proof of service is particularly significant in the present case given the nature of the relief sought. The application seeks extraordinary interlocutory orders, including a Mareva injunction and an Anton Piller order, which can have far-reaching consequences for the parties affected. 13.Before the court can grant such relief, it must be satisfied that the applicable procedural requirements have been complied with or, where the circumstances justify, that the threshold for ex parte intervention has been met. 14.More than two years have elapsed since the institution of the suit. No interim orders were granted at the inception of the proceedings, and the record does not demonstrate that the application was thereafter prosecuted with the expedition ordinarily expected where exceptional equitable relief is sought. 15.Although the parties have participated in related proceedings, HCCC E232 of 2024; Shop & Deliver Limited v IOT Limited; Morris Mweru & 4 Others, filed responses therein and engaged in negotiations, each suit remains distinct, and the court cannot overlook the absence of evidence on the record showing compliance with the procedural requirements governing this suit. Directions 16.Accordingly, the court directs that: -1.The plaintiff/ applicant shall, within fourteen (14) days of the date hereof, either file the requisite affidavit(s) of service if service has already been done, or,2.Where service has not been done, the plaintiff/ applicant shall serve the notice of motion and thereafter file the requisite affidavit(s) of service.3.The order scheduling this matter for ruling is, thus, vacated, and the matter is no longer for ruling.4.The application be fixed for directions. A notice thereof be served upon the 1st and 2nd defendants. DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 9TH DAY OF JULY, 2026-----------------F. GIKONYO MJUDGEIn the presence of: -Kirugu for Wairoto for plaintiffNo appearance by plaintiffCA- Ivan/Aggrey