1. Introduction
This ruling concerns three applications dated 11th and 18th December 2025 together with a preliminary objection dated 18th December 2025. In light of the multiplicity of the applications and the nature of the dispute, the Court considers it necessary to set out the factual background before addressing the issues arising for determination.
2. Background
The Petitioner is the widow of the late George Barbour and a beneficiary of his estate following succession proceedings concluded in 2023. By virtue of the grant issued therein, she became entitled to shares in the 1st Interested Party, a public limited company.
As at 10th December 2025, the company had a nominal share capital of KES 19,840 divided into Class A and Class B shares. Class A shares carry superior voting rights, including decision-making on fundamental corporate matters, while Class B shares are restricted in their voting scope.
The Petitioner holds Class B shares and contends that the restructuring of the shareholding and the amendment of the Articles of Association were undertaken in a manner that was procedurally irregular, oppressive, and designed to exclude her from effective participation in the affairs of the company.
She further challenges the convening of an Extra General Meeting intended, inter alia, to facilitate the disposal of the company’s assets.
3. Issues for Determination
The Court identifies the following issues for determination:
1. Whether the preliminary objection dated 18th December 2025 is meritorious;
2. Whether the Petitioner has met the threshold for the grant of a temporary injunction;
3. Whether the application for joinder has merit.
4. Analysis
A. Whether the Preliminary Objection Has Merit
The Respondents have raised a preliminary objection on grounds of jurisdiction, res judicata, and abuse of the court process.
The principles governing preliminary objections are settled. In M ukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , it was held that a preliminary objection must raise a pure point of law and must be argued on the assumption that all the facts pleaded by the opposite party are correct.
This position has been reiterated in subsequent decisions. In Oraro v Mbaja [2005] eKLR , the Court held that a preliminary objection cannot be raised where facts are contested or where the Court is required to exercise discretion. Likewise, in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR , the Court cautioned against the improper invocation of preliminary objections where factual issues remain unresolved.
In the present case, the objection is predicated upon matters that are plainly contested, including:
• the validity and effect of prior proceedings;
• the propriety of the Petitioner’s shareholding;
• the legality of corporate decisions taken by the Respondents; and
• the applicability of statutory provisions under the Companies Act.
These are not pure points of law. They invite the Court to interrogate facts, evaluate evidence, and make determinations that properly fall within the province of a full hearing.
With respect to the plea of res judicata , the Court is not persuaded that the threshold under Section 7 of the Civil Procedure Act has been met. The prior proceedings alluded to relate to land and execution of decrees, whereas the present Petition raises issues of corporate governance, shareholder rights, and alleged oppression. The causes of action and issues in controversy are therefore distinct.
In the premises, the Court finds that the preliminary objection is misplaced and improperly taken . It does not meet the threshold of a true preliminary objection and is hereby dismissed.
B. Whether the Petitioner Meets the Threshold for Injunction
The applicable principles are those set out in Giella v Cassman Brown [1973] EA 358 .
(i) Prima Facie Case
The material placed before the Court discloses serious and arguable questions relating to:
• the restructuring of shareholding;
• the differentiation of voting rights; and
• the conduct of the Respondents in the management of the company.
These issues raise concerns of possible oppression and unfair prejudice , as well as interference with the Petitioner’s rights as a shareholder.
The Court is satisfied that the Petitioner has established a prima facie case with a probability of success .
(ii) Irreparable Harm
The Court does not consider this to be a purely commercial dispute amenable to compensation by damages.
The Petition implicates:
• proprietary rights attached to shareholding;
• participatory rights in the governance of the company; and
• the integrity of the company’s asset base.
The intended disposal of the company’s assets would fundamentally alter the substratum of the company and may render the Petition nugatory. In such circumstances, an award of damages would not constitute an adequate remedy.
The Court is therefore satisfied that the Petitioner stands to suffer irreparable harm .
(iii) Balance of Convenience
The balance of convenience tilts in favour of maintaining the status quo.
The dispute concerns a closely held company with familial shareholding, and the proposed actions involve the disposal of core assets. Prudence dictates that such assets be preserved pending the determination of the Petition, so as to safeguard the subject matter of the dispute and ensure that the Court’s eventual decision is not rendered ineffectual.
C. Whether the Joinder Application Has Merit
The Applicant has demonstrated that he is both a director and shareholder of the 1st Interested Party and that the outcome of these proceedings will directly affect his interests.
Although the application for joinder as an interested party does not fully meet the threshold set out in Muruatetu & Another v Republic [2016] eKLR , the Court is satisfied that his participation is necessary for the effectual and complete adjudication of the issues in dispute.
Pursuant to Order 1 Rule 10(2) of the Civil Procedure Rules, the Court hereby directs that he be joined as a Respondent .
5. Costs
Given the nature of the dispute and the relationship between the parties, the Court considers it just to depart from the general rule that costs follow the event.
6. Orders
Accordingly, the Court makes the following orders:
1. The preliminary objection dated 18th December 2025 is hereby dismissed .
2. The Petitioner’s application dated 11th December 2025 is hereby allowed .
3. A temporary injunction is hereby issued restraining the Respondents, their agents, or any person acting under their authority from:
o (a) convening or proceeding with the Extra General Meeting for purposes of asset disposal;
o (b) selling, transferring, alienating, or otherwise disposing of the assets of the 1st Interested Party;
o (c) implementing any resolution relating to such disposal;
pending the hearing and determination of the Petition.
4. Anthony John Barbour is hereby joined as a Respondent . He is granted leave to file his response.
5. Each party shall bear its own costs.
7. Disposition
It is so ordered.
DATED, SIGNED AND DELIVERED at Mombasa this …19th…… day of MARCH……… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
PRESENT
MR WAIGWA FOR THE PETITIONER
MS NGANYA HOLDING BRIEF FOR MS KITUR FOR THE FOR THE 1 ST TO 4 TH RESPONDENTS
MR ANGURO HOLDING BRIEF FOR MS WAMAITHA FORT THE 1 ST INTERESTED PARTY
MR OBONYO FOR THE 3 RD INTERESTED PARTY
This ruling concerns three applications dated 11th and 18th December 2025 together with a preliminary objection dated 18th December 2025. In light of the multiplicity of the applications and the nature of the dispute, the Court considers it necessary to set out the factual background before addressing the issues arising for determination.
2. Background
The Petitioner is the widow of the late George Barbour and a beneficiary of his estate following succession proceedings concluded in 2023. By virtue of the grant issued therein, she became entitled to shares in the 1st Interested Party, a public limited company.
As at 10th December 2025, the company had a nominal share capital of KES 19,840 divided into Class A and Class B shares. Class A shares carry superior voting rights, including decision-making on fundamental corporate matters, while Class B shares are restricted in their voting scope.
The Petitioner holds Class B shares and contends that the restructuring of the shareholding and the amendment of the Articles of Association were undertaken in a manner that was procedurally irregular, oppressive, and designed to exclude her from effective participation in the affairs of the company.
She further challenges the convening of an Extra General Meeting intended, inter alia, to facilitate the disposal of the company’s assets.
3. Issues for Determination
The Court identifies the following issues for determination:
1. Whether the preliminary objection dated 18th December 2025 is meritorious;
2. Whether the Petitioner has met the threshold for the grant of a temporary injunction;
3. Whether the application for joinder has merit.
4. Analysis
A. Whether the Preliminary Objection Has Merit
The Respondents have raised a preliminary objection on grounds of jurisdiction, res judicata, and abuse of the court process.
The principles governing preliminary objections are settled. In M ukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 , it was held that a preliminary objection must raise a pure point of law and must be argued on the assumption that all the facts pleaded by the opposite party are correct.
This position has been reiterated in subsequent decisions. In Oraro v Mbaja [2005] eKLR , the Court held that a preliminary objection cannot be raised where facts are contested or where the Court is required to exercise discretion. Likewise, in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR , the Court cautioned against the improper invocation of preliminary objections where factual issues remain unresolved.
In the present case, the objection is predicated upon matters that are plainly contested, including:
• the validity and effect of prior proceedings;
• the propriety of the Petitioner’s shareholding;
• the legality of corporate decisions taken by the Respondents; and
• the applicability of statutory provisions under the Companies Act.
These are not pure points of law. They invite the Court to interrogate facts, evaluate evidence, and make determinations that properly fall within the province of a full hearing.
With respect to the plea of res judicata , the Court is not persuaded that the threshold under Section 7 of the Civil Procedure Act has been met. The prior proceedings alluded to relate to land and execution of decrees, whereas the present Petition raises issues of corporate governance, shareholder rights, and alleged oppression. The causes of action and issues in controversy are therefore distinct.
In the premises, the Court finds that the preliminary objection is misplaced and improperly taken . It does not meet the threshold of a true preliminary objection and is hereby dismissed.
B. Whether the Petitioner Meets the Threshold for Injunction
The applicable principles are those set out in Giella v Cassman Brown [1973] EA 358 .
(i) Prima Facie Case
The material placed before the Court discloses serious and arguable questions relating to:
• the restructuring of shareholding;
• the differentiation of voting rights; and
• the conduct of the Respondents in the management of the company.
These issues raise concerns of possible oppression and unfair prejudice , as well as interference with the Petitioner’s rights as a shareholder.
The Court is satisfied that the Petitioner has established a prima facie case with a probability of success .
(ii) Irreparable Harm
The Court does not consider this to be a purely commercial dispute amenable to compensation by damages.
The Petition implicates:
• proprietary rights attached to shareholding;
• participatory rights in the governance of the company; and
• the integrity of the company’s asset base.
The intended disposal of the company’s assets would fundamentally alter the substratum of the company and may render the Petition nugatory. In such circumstances, an award of damages would not constitute an adequate remedy.
The Court is therefore satisfied that the Petitioner stands to suffer irreparable harm .
(iii) Balance of Convenience
The balance of convenience tilts in favour of maintaining the status quo.
The dispute concerns a closely held company with familial shareholding, and the proposed actions involve the disposal of core assets. Prudence dictates that such assets be preserved pending the determination of the Petition, so as to safeguard the subject matter of the dispute and ensure that the Court’s eventual decision is not rendered ineffectual.
C. Whether the Joinder Application Has Merit
The Applicant has demonstrated that he is both a director and shareholder of the 1st Interested Party and that the outcome of these proceedings will directly affect his interests.
Although the application for joinder as an interested party does not fully meet the threshold set out in Muruatetu & Another v Republic [2016] eKLR , the Court is satisfied that his participation is necessary for the effectual and complete adjudication of the issues in dispute.
Pursuant to Order 1 Rule 10(2) of the Civil Procedure Rules, the Court hereby directs that he be joined as a Respondent .
5. Costs
Given the nature of the dispute and the relationship between the parties, the Court considers it just to depart from the general rule that costs follow the event.
6. Orders
Accordingly, the Court makes the following orders:
1. The preliminary objection dated 18th December 2025 is hereby dismissed .
2. The Petitioner’s application dated 11th December 2025 is hereby allowed .
3. A temporary injunction is hereby issued restraining the Respondents, their agents, or any person acting under their authority from:
o (a) convening or proceeding with the Extra General Meeting for purposes of asset disposal;
o (b) selling, transferring, alienating, or otherwise disposing of the assets of the 1st Interested Party;
o (c) implementing any resolution relating to such disposal;
pending the hearing and determination of the Petition.
4. Anthony John Barbour is hereby joined as a Respondent . He is granted leave to file his response.
5. Each party shall bear its own costs.
7. Disposition
It is so ordered.
DATED, SIGNED AND DELIVERED at Mombasa this …19th…… day of MARCH……… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
PRESENT
MR WAIGWA FOR THE PETITIONER
MS NGANYA HOLDING BRIEF FOR MS KITUR FOR THE FOR THE 1 ST TO 4 TH RESPONDENTS
MR ANGURO HOLDING BRIEF FOR MS WAMAITHA FORT THE 1 ST INTERESTED PARTY
MR OBONYO FOR THE 3 RD INTERESTED PARTY