1. The Applicant filed a Notice of Motion dated 12th June 2025 seeking the following orders;
a) The Court to issue a temporary injunction restraining the defendant/respondent their agents, servants, officials and/or any other person claiming under them from holding and proceeding on with the Annual General meeting scheduled to take place on 22nd June, 2025 pending the hearing of the main suit.
b) The Court to issue a temporary injunction restraining the defendants/respondents their agents, servants, officials and/or any other person claiming under them from increasing the service charge pending the hearing of the main suit.
c) Any other relief or orders that this court may deem fit to issue.
d) Costs of this application to be in the cause.
2. The Application was supported by the Affidavit of Dr. Hezekiel Oira . He stated that the Plaintiff/Applicant is a shareholder of the Defendant company, which was incorporated in Kenya to manage the duplexes and amenities erected on Land Parcel Nairobi/Block 15/642. On 29th August 2024, the Defendant held an Annual General Meeting during which several resolutions were passed, including a resolution to increase the service charge. Aggrieved by what is termed as an irregular approval of the service charge increment, the Plaintiff filed the present suit challenging that resolution.
3. Subsequently, the Defendant issued a notice convening another Annual General Meeting scheduled for 22nd June 2025, with one of the key agenda items being a review of the service charge on the basis that it has not been revised since 2017. The Plaintiff contends that this move is a deliberate attempt to downplay the disputed 2024 increment and to circumvent the ongoing Court proceedings by regularizing a matter already under litigation. It is argued that unless the Court intervenes, deliberation or passage of the proposed increase will prejudice the Plaintiff, render the suit nugatory, and occasion irreparable loss and damage.
4. In response to the Application, the Respondent filed a Replying Affidavit sworn on 24th June 2025. The Respondent averred that proper notice of the Annual General Meeting held on 29th August 2024 was duly issued to all members, including the Applicant. That this was in accordance with the Articles of Association, and that the agenda was clearly outlined. Although a proposal to increase the service charge was discussed under “Any Other Business,” no resolution was passed and no increase was effected. The Respondent maintained that the Applicant’s claim that the service charge was increased is false, speculative, and unsupported by evidence. It further argued that the suit is premature and defective for lack of locus standi, as any such challenge ought to have been brought as a derivative action.
5. With respect to the AGM scheduled for 22nd June 2025, the Respondent stated that proper notice was issued together with a detailed Service Charge Review Proposal and budget, necessitated by financial losses incurred over the past two years. The Respondent emphasized that management of the company, including formulation of such proposals, falls within the mandate of the Board of Directors under the Articles of Association, and that the Applicant, not being a director, was not entitled to be consulted. It contends that the application is an attempt to obstruct the company’s governance processes and that any concerns should be raised at the AGM rather than through court proceedings.
Issues for determination
6. The Court has carefully considered the written submissions and frames the following issue for determination;
a) Whether the Court ought to grant the injunctive orders sought by the Applicant.
Analysis
7. Interlocutory injunctions are provided for under Order 40 Rules (1)(a) and (b) of the Civil Procedure Rules , which provides -
Where in any suit it is proved by affidavit or otherwise-
a. that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
b. that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
8. The leading authority on the principles governing the grant of interlocutory injunctions is Giella v Cassman Brown & Co. Ltd [1973] E.A. 360 , in which the Court set out the applicable tests as follows -
Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.
9. The Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) , considered what constitutes a prima case and held that -
“So what is a prima facie case? I would say that in civil cases, it is a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
10. Has the Applicant established a prima facie case? According to the Applicant, following the filing of this suit, the Respondent issued a Notice dated 20th May 2025 convening an Annual General Meeting (AGM) for 22nd June 2025. It listed as Agenda No. 5 a service review proposal by the Directors of Bayswater Management Ltd. The AGM was later deferred to 8th July 2025, with a fresh notice retaining the discussion on service charge as Agenda No. 7.
11. The proposed increment of Kshs.5,000—raising the monthly service charge from Kshs. 18,000 to Kshs.23,000—had previously been introduced and discussed under “Any Other Business” at the AGM of 29th August 2024. The Respondent now seeks to formally ratify the same increment as a substantive agenda item in the subsequent AGM. The Plaintiff maintains that this is allegedly in an attempt to circumvent the ongoing Court proceedings.
12. To contrast the Applicant’s averment, the Respondent argued that no increase of service charge has been effected at the Property since the 2024 AGM. That the Plaintiff has not been able to tender any evidence to prove the same. Accordingly, any allegations of irregular increase of service charge are false and the Defendant has acted transparently and lawfully at every step.
13. Having perused the documents annexed to the Application, the Court notes that Agenda 7 of the Notice of Annual General meeting dated 10th June, 2025 states as follows;
"To consider and, if thought fit, to approve the following ordinary resolution: That the service charge be and is hereby increased from kshs.18,000/- per month to Kshs.23,000/= per month with effect from 1st July, 2025 as recommended by the Directors."
14. A cursory look at the wording of the above statement reveals that this was a proposal that was to be considered, and if found fit, it would have been approved.
15. In light of the above, the Court is not convinced that the Applicant has established a prima facie case. The reason being that the Applicant has not produced any evidence to confirm that indeed a resolution was passed and the service charge increased. As it stands, no right has been infringed. The Court would also hesitate from interfering with the internal workings, decisions and resolution making organs of the Defendant. The Annual General Meeting is the supreme decision/resolution making organ of the Company. It has not been submitted that the Plaintiff will be denied attendance at the AGM. It has not been submitted that he will not be given an opportunity to persuade his fellow shareholders to vote out the increment.
16. The Court would hesitate from barring the Company from holing an Annual General Meeting. It would only do so in the clearest of cases and upon prima facie demonstration that the rules for calling such a meeting have been ignored or breached. It would also consider doing so if the rights of a party have been infringed eg a right to a fair hearing or outright discrimination. The Annual General Meeting should the the for a where the Management gets to hear from the shareholders. The Shareholders also get to ratify the actions of the Management.
17. At this interlocutory stage, the Applicant was called upon to establish a prima facie case. However, once the Court concludes that no prima facie case has been established, it need not consider the remaining limbs of irreparable harm or balance of convenience.
18. It is however not lost to the Court that the service charge is money which is quantifiable and can easily be compensated for by way of refunds. This is if it turns out that the increment was wrongly arrived at. As to the balance of convenience the same lies in favour of having the services to the property maintained. The Court would after taking into consideration all the circumstances of this case, lean towards having the service charge agreed upon by the home owners/Shareholders paid.
19. In light of the above, the Court declines to issue an injunctive order. As the suit will still have to be heard before this Court, the Court need not say more. It will wait for the presentation of evidence. Save to state that the Court is possessed of sufficient power to make good the claim by the Plaintiff if he proves his case at trial.
20. As to costs, the same ordinarily follow the event and are awarded to the Respondent.
Determination
21. The Plaintiff’s Application by way of a Notice of Motion dated 12th June, 2025 is dismissed for lack of merits.
22. The Costs thereof are awarded to the Respondent.
23. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Oseko for the Plaintiff/Applicant.
Miss Gechaga Defendant/Respondent
Peter Wabwire - Court Assistants.
a) The Court to issue a temporary injunction restraining the defendant/respondent their agents, servants, officials and/or any other person claiming under them from holding and proceeding on with the Annual General meeting scheduled to take place on 22nd June, 2025 pending the hearing of the main suit.
b) The Court to issue a temporary injunction restraining the defendants/respondents their agents, servants, officials and/or any other person claiming under them from increasing the service charge pending the hearing of the main suit.
c) Any other relief or orders that this court may deem fit to issue.
d) Costs of this application to be in the cause.
2. The Application was supported by the Affidavit of Dr. Hezekiel Oira . He stated that the Plaintiff/Applicant is a shareholder of the Defendant company, which was incorporated in Kenya to manage the duplexes and amenities erected on Land Parcel Nairobi/Block 15/642. On 29th August 2024, the Defendant held an Annual General Meeting during which several resolutions were passed, including a resolution to increase the service charge. Aggrieved by what is termed as an irregular approval of the service charge increment, the Plaintiff filed the present suit challenging that resolution.
3. Subsequently, the Defendant issued a notice convening another Annual General Meeting scheduled for 22nd June 2025, with one of the key agenda items being a review of the service charge on the basis that it has not been revised since 2017. The Plaintiff contends that this move is a deliberate attempt to downplay the disputed 2024 increment and to circumvent the ongoing Court proceedings by regularizing a matter already under litigation. It is argued that unless the Court intervenes, deliberation or passage of the proposed increase will prejudice the Plaintiff, render the suit nugatory, and occasion irreparable loss and damage.
4. In response to the Application, the Respondent filed a Replying Affidavit sworn on 24th June 2025. The Respondent averred that proper notice of the Annual General Meeting held on 29th August 2024 was duly issued to all members, including the Applicant. That this was in accordance with the Articles of Association, and that the agenda was clearly outlined. Although a proposal to increase the service charge was discussed under “Any Other Business,” no resolution was passed and no increase was effected. The Respondent maintained that the Applicant’s claim that the service charge was increased is false, speculative, and unsupported by evidence. It further argued that the suit is premature and defective for lack of locus standi, as any such challenge ought to have been brought as a derivative action.
5. With respect to the AGM scheduled for 22nd June 2025, the Respondent stated that proper notice was issued together with a detailed Service Charge Review Proposal and budget, necessitated by financial losses incurred over the past two years. The Respondent emphasized that management of the company, including formulation of such proposals, falls within the mandate of the Board of Directors under the Articles of Association, and that the Applicant, not being a director, was not entitled to be consulted. It contends that the application is an attempt to obstruct the company’s governance processes and that any concerns should be raised at the AGM rather than through court proceedings.
Issues for determination
6. The Court has carefully considered the written submissions and frames the following issue for determination;
a) Whether the Court ought to grant the injunctive orders sought by the Applicant.
Analysis
7. Interlocutory injunctions are provided for under Order 40 Rules (1)(a) and (b) of the Civil Procedure Rules , which provides -
Where in any suit it is proved by affidavit or otherwise-
a. that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or
b. that the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.
8. The leading authority on the principles governing the grant of interlocutory injunctions is Giella v Cassman Brown & Co. Ltd [1973] E.A. 360 , in which the Court set out the applicable tests as follows -
Firstly, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience.
9. The Court of Appeal in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) , considered what constitutes a prima case and held that -
“So what is a prima facie case? I would say that in civil cases, it is a case in which on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the Applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.”
10. Has the Applicant established a prima facie case? According to the Applicant, following the filing of this suit, the Respondent issued a Notice dated 20th May 2025 convening an Annual General Meeting (AGM) for 22nd June 2025. It listed as Agenda No. 5 a service review proposal by the Directors of Bayswater Management Ltd. The AGM was later deferred to 8th July 2025, with a fresh notice retaining the discussion on service charge as Agenda No. 7.
11. The proposed increment of Kshs.5,000—raising the monthly service charge from Kshs. 18,000 to Kshs.23,000—had previously been introduced and discussed under “Any Other Business” at the AGM of 29th August 2024. The Respondent now seeks to formally ratify the same increment as a substantive agenda item in the subsequent AGM. The Plaintiff maintains that this is allegedly in an attempt to circumvent the ongoing Court proceedings.
12. To contrast the Applicant’s averment, the Respondent argued that no increase of service charge has been effected at the Property since the 2024 AGM. That the Plaintiff has not been able to tender any evidence to prove the same. Accordingly, any allegations of irregular increase of service charge are false and the Defendant has acted transparently and lawfully at every step.
13. Having perused the documents annexed to the Application, the Court notes that Agenda 7 of the Notice of Annual General meeting dated 10th June, 2025 states as follows;
"To consider and, if thought fit, to approve the following ordinary resolution: That the service charge be and is hereby increased from kshs.18,000/- per month to Kshs.23,000/= per month with effect from 1st July, 2025 as recommended by the Directors."
14. A cursory look at the wording of the above statement reveals that this was a proposal that was to be considered, and if found fit, it would have been approved.
15. In light of the above, the Court is not convinced that the Applicant has established a prima facie case. The reason being that the Applicant has not produced any evidence to confirm that indeed a resolution was passed and the service charge increased. As it stands, no right has been infringed. The Court would also hesitate from interfering with the internal workings, decisions and resolution making organs of the Defendant. The Annual General Meeting is the supreme decision/resolution making organ of the Company. It has not been submitted that the Plaintiff will be denied attendance at the AGM. It has not been submitted that he will not be given an opportunity to persuade his fellow shareholders to vote out the increment.
16. The Court would hesitate from barring the Company from holing an Annual General Meeting. It would only do so in the clearest of cases and upon prima facie demonstration that the rules for calling such a meeting have been ignored or breached. It would also consider doing so if the rights of a party have been infringed eg a right to a fair hearing or outright discrimination. The Annual General Meeting should the the for a where the Management gets to hear from the shareholders. The Shareholders also get to ratify the actions of the Management.
17. At this interlocutory stage, the Applicant was called upon to establish a prima facie case. However, once the Court concludes that no prima facie case has been established, it need not consider the remaining limbs of irreparable harm or balance of convenience.
18. It is however not lost to the Court that the service charge is money which is quantifiable and can easily be compensated for by way of refunds. This is if it turns out that the increment was wrongly arrived at. As to the balance of convenience the same lies in favour of having the services to the property maintained. The Court would after taking into consideration all the circumstances of this case, lean towards having the service charge agreed upon by the home owners/Shareholders paid.
19. In light of the above, the Court declines to issue an injunctive order. As the suit will still have to be heard before this Court, the Court need not say more. It will wait for the presentation of evidence. Save to state that the Court is possessed of sufficient power to make good the claim by the Plaintiff if he proves his case at trial.
20. As to costs, the same ordinarily follow the event and are awarded to the Respondent.
Determination
21. The Plaintiff’s Application by way of a Notice of Motion dated 12th June, 2025 is dismissed for lack of merits.
22. The Costs thereof are awarded to the Respondent.
23. It is so ordered.
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Oseko for the Plaintiff/Applicant.
Miss Gechaga Defendant/Respondent
Peter Wabwire - Court Assistants.