1. The petitioner and respondent are presently spouses, living apart and engaged in divorce proceedings, to wit, Mombasa Kadhi’s Court Divorce Cause No E075 of 2025. The parties are shareholders in the interested party, with the petitioner holding 10% and the respondent 85%. The remainder is held by their son, Noor Mohamed Shabir Harunany. The respondent is the sole director of the interested party. I shall hereafter refer to the interested party as “the company”.
2. The petitioner avers that, as the director of the interested party, the respondent has a duty to manage the company's affairs in the best interests of the minority shareholders. As a minority shareholder, she avers that she is entitled to receive dividends, participate in decision-making, and have access to information, including all books of account, financial records, and financial statements of the interested party.
3. She contends that, contrary to the foregoing, the petitioner has excluded her from the affairs of the interested party and has been running the company as his own personal property in a manner that is unfair, prejudicial and oppressive to the petitioner, by sidelining her in decision-making, failing to pay dividends, refusing to grant her access to the interested party’s books of account, records and financial statements, not holding annual general meetings, delaying the accounts, depriving the petitioner of the right to know the state of the company, incorporating another company known as Simba 555 Motors Ltd, which conducts business similar to that of the interested party, in which he is the sole director and shareholder, and diverting the business of the interested party to that company.
4. The petitioners aver that the said conduct amounts to breaches of statutory duty of care, fiduciary duty, and duty of loyalty, constitutes a conflict of interest, and is unfair and oppressive conduct contrary to sections 780 and 782 of the Companies Act. She apprehends that there is a clear and present danger of the dissipation of the interested party’s assets and the concealment of financial mismanagement unless this Court urgently intervenes, and that unless he is restrained, the petitioner will suffer irreparable harm and loss which cannot be compensated by payment of damages.
5. The respondent opposes the application, as does the interested party. Their main contention is that the present application is res sub judice, as a similar application is pending before the Kadhi’s Court and in the Family Division of this Court. It is further contended that the grant of the orders sought will grind the business of the interested party to a standstill and would be oppressive. The Court is urged to dismiss the application with costs.
6. Based on the foregoing, the petitioner filed the Notice of Motion dated 29th August 2025. Vide the said Motion she sought the following orders:
1. Spent;
2. This honourable Court be pleased to grant leave to the petitioner/applicant to proceed with this matter as a derivative suit;
3. Spent;
4. Pending the hearing and determination of the petition, the Court be pleased to issue the following interim orders:-
a. An order of injunction be issued restraining the respondent by himself, agents, servants or any other person acting on his behalf from disposing of, transferring, alienating or otherwise, from dealing with the assets, funds, or any property of the interested party without the involvement, consent or consultation of the petitioner/Applicant;
b. An order of injunction be issued restraining the respondent, by himself, agents, servants or any other person acting on his behalf, from proceeding to divert the business of the interested party to the new similar company known as Simba 555 Motors Ltd, owned by the respondent;
c. An order of injunction be issued directing the respondent by himself, agents, servants or any other person acting on his behalf to deposit all the income generated from the business of the Interested Party and the new registered company known as Simba 555 Motors Ltd derived from sale of motor vehicles into the designated bank account of the interested party held at the Equity Bank Kenya account number 1380283538900 and 1380182402368 in Nyali branch Mombasa and KCB account numbers 1297123042, situate at Nyali Branch, Mombasa and any other bank account where the respondent is the ultimate beneficial owner;
d. An order to freeze and or prevent and or restrain the respondent from withdrawing any funds in account numbers 1380283538900 and 1380182402368 in the Nyali branch, Mombasa, and KCB account numbers 1297123042 situate at the Nyali branch, Mombasa and any other bank account where the respondent is the ultimate beneficial owner;
e. An order of injunction be issued to restrain National Transport and Safety Authority (NTSA ) from effecting transfers of the Interested Party's motor vehicles registration numbers KDS 613L, KDS 137R, KDT152C, KDS885Y, KDS 656F, KDS 034F and any other motor vehicles owned by the Interested Party herein; and
f. An order of injunction be issued to compel the respondent to produce the financial records, books of account and bank statements of the interested party from 2022 to date;
5. Costs of this application be borne by the respondent.
7. The application is grounded on averments I have already stated. In addition, the petitioner avers that she faces the risk of tax non-compliance and may consequently be subjected to onerous obligations. She therefore prays that the orders sought be issued to preserve the interested party’s assets and to enforce shareholder rights pending the hearing and determination of the petition. She further contends that there would be a miscarriage of justice unless the orders sought are granted.
8. Upon preliminary consideration of the matter, Florence Wangari, J, granted temporary relief in respect of prayers 2 (allowing the petitioner to proceed with this matter as a derivative suit) and 3(a), (b) and (e) of the said application, pending directions that would be issued inter partes.
9. Upon being served, the respondent filed a notice of preliminary objection dated 16th September 2025, vide which he contended that there was a similar application pending in Mombasa Kadhi’s Court Divorce Petition No E075 of 2025 seeking similar prayers and that a decision in the latter matter was appealed to this Court vide Mombasa HCFA No E042 of 2025. It was contended that the matters were therefore res sub judice and should be struck out and interim orders discharged.
10. The respondent also filed a replying affidavit sworn on 16th September 2025. In that affidavit, the respondent averred that a similar application was before the Kadhi’s Court, where the learned Kadhi ruled that he had jurisdiction to hear and determine issues relating to the running and management of limited liability companies. Dissatisfied with that decision, he filed an appeal in Mombasa HCFA No E042 of 2025 and obtained interim orders. The respondent urged that the application ought to be struck out as res sub judice to the 2 matters, with costs, or, in the alternative, be stayed pending the hearing and determination of the suit and appeal, and that the interim orders be discharged forthwith.
11. The respondent averred that he had given the petitioner shares in the company and that she made no monetary contribution towards the capital or the business of the company. On that basis, he contended that he did not owe her a duty to disclose details of the company, except for audited accounts, nor was she entitled to dividends. That notwithstanding, he had paid the petitioner a substantial sum via M-Pesa.
12. He accused the petitioner of chasing him from their matrimonial home and of not checking out the books of account, despite these being available. The respondent averred that if the orders are granted, the business of the interested party would grind to a halt and that innocent third parties, in particular, car purchasers, would be adversely affected. He prayed that the interim orders be discharged.
13. The respondent annexed to the response the documents filed in the Kadhi’s Court in support of his contention that both matters were between the same parties and concerned the same subject matter.
14. The interested party also opposed the application dated 29th August 2025 by filing a reply affidavit, sworn on 15th October 2025, by Mr Shabbir Mohamed Harunany, in his capacity as the interested party's sole director. Mr Harunany deposed that he had complied with all fiduciary and statutory obligations under the Companies Act, 2015, and with the company's Articles of Association. He denied the allegation of breach of his statutory obligations, contending that the petitioner had not produced credible evidence in support of her claim.
15. Mr Harunany further contended that the interested party was a going concern with obligations to customers, employees, suppliers, and the Kenya Revenue Authority, and that if the order sought were issued, it would cripple the company, jeopardize contractual obligations, expose it to defaults and penalties, and irreparably harm the company's reputation and goodwill.
16. It was contended that there was a distinction between the role of a director, which the petitioner wasn’t, and her status as a shareholder. Mr Harunany stated that the petitioner had not shown that she had been denied any rights exercisable by her as a shareholder. He further contended that it hadn’t been shown that a derivative suit could properly be filed, as what was pending in court wasn’t brought in good faith, for the benefit of the company, and did not raise a serious question regarding alleged wrongdoing against the company. He further contended that the petitioner hadn’t shown that it would be futile to invoke the company’s internal mechanisms before rushing to Court.
17. Mr Harunany contended that the petition was closely tied to the matrimonial proceedings. He averred that the Commercial Court was not a proper arena for the resolution of matrimonial disputes and that corporate remedies were being used as a leverage in the latter proceedings. He accused the petitioner of not exhausting the available remedies, for example, by failing to requisition an annual general meeting. Regarding dividends, he contended that no dividends were payable, as the company had incurred losses since 2022, as evidenced by the financial statements annexed as exhibits “SMH1” and “SMH2”. He averred that the issuance of the orders sought by the petitioner would be draconian, would halt day-to-day trading, would precipitate defaults with its financiers and suppliers, and would inflict irreparable harm to the company's goodwill and solvency.
18. It was also contended that the petitioners could access the company’s books of account by following the proper statutory procedure. He also denied that there had been any breach of the company’s tax obligations.
19. The petitioner filed supplementary and further affidavits, sworn on 14th and 28th October 2025, respectively, in which she averred that the sub judice doctrine was inapplicable because the subject of these proceedings was a derivative action, whereas the other proceedings were matrimonial and divorce proceedings. It was urged that the Kadhi’s Court has no jurisdiction to determine company matters. She deposed that it was necessary to issue the orders sought in the interests of justice.
20. The application was canvassed through written submissions. I will summarise the submissions below.
21. The petitioner/applicant’s submissions are dated 2nd November 2025. The petitioner submitted that the respondent fraudulently diverted business from the interested party to Simba 555 Motors Ltd, made false declarations to the Registrar of Companies, concealed accounts and statutory records, falsified and fabricated financial records, diverted and sold motor vehicles through another entity, oppressed and excluded the petitioner from all management and communication platforms, defied Court orders, and abused the corporate form for personal enrichment.
22. It was submitted that the preliminary objection wasn’t rightly taken as it invites the Court to interrogate facts. Counsel submitted that the Kadhi’s Court cannot determine issues of corporate governance, statutory suits, offences by directors, taxation, and that the reliefs sought are the enforcement of directors’ statutory duties and recovery of diverted corporate income.
23. The petitioner submitted that the issues for determination were:-
1. Whether the petitioner/applicant was a bona fide shareholder of the interested party;
2. Whether the respondent’s conduct was oppressive, fraudulent and in breach of fiduciary duty;
3. Whether the incorporation of Simba 555 Motors Ltd was intended to divert corporate opportunity;
4. Whether the Court should lift the corporate veil;
5. Whether the reliefs sought are just and equitable
24. In response to the 1st to 4th issues, the petitioner submitted that the answer was in the affirmative. That being the case, it was urged that orders sought ought to issue.
25. The submissions of the Respondent are dated 26th November 2025. The submissions are in opposition to the application and in support of the grounds of opposition and the preliminary objection. It was urged in support of the preliminary objection that there was a similar application pending in Kadhi’s Court, to wit, Divorce Petition No E075 of 2025 and that there was also an appeal in Mombasa HCFA No E042 of 2025, which is pending. That being the case, the matter is subjudice. Reliance was placed in the following cases: Khalid Swaleh Hantoosh v Mohamed Swaleh Karama Hantoosh; HCP&A No E012 of 2023, Mombasa HCC No 270 of 2005; Abdul Kassim Hassanali Gulamhussein Khala v Southern Credit Banking Corporation Ltd, and Nairobi CACA No 100 & 106 of 2010; Kenya Commercial Bank Ltd v Muiru Coffee Estate Ltd & 3 others. It was urged that the preliminary objection be upheld.
26. It was submitted that no case had been made for the issuance of injunctive relief on the ground that the petitioner and the respondent were still a married couple and that there had been no squabbles until the High Court issued stay orders in HCFA No E042 of 2025 on 30th July 2025, when the petitioner filed this petition. It was further contended that no evidence of adverse action by the respondent in the running of the company had been shown, and that the petitioner had not shown how much share capital she had invested in the interested party, nor any adverse action against her nominal shares. Reliance was placed on the case of Mombasa HCCC No E061 of 2025; Exon Investments Ltd v SBM Bank Kenya Ltd & another.
27. Counsel submitted that the appropriate test for bringing a derivative action was not met. In support of this, the Court was urged to consider the dictum in Nairobi CACA No 165 of 2017; Sultan Hasham Lalji & Trio Holdings Ltd & 2 others.
28. The counsel for the Respondent therefore prayed that the application for an injunction be dismissed with costs.
29. On its part, the interested party filed written submissions dated 28th November 2025 through its counsel on record. The following were identified as issues coming up for determination
1. Whether the petitioner met the test for the grant of an interlocutory injunction;
2. Whether the petitioner/applicant met the test for issuance of a mandatory injunction; and
3. Whether the petitioner met the test for issuance of a Mareva injunction
30. It was submitted that the petitioner failed to show that she had met the test for the grant of interlocutory injunction relief, as authoritatively stated in the case of Giella v Cassman Brown & Co Ltd [1973]EA 358. This was so because she hadn’t shown that she had a prima facie with probability of success, insofar as she had no right to participate in the management of the company, to receive dividends where the company was making losses. It was submitted that it could not be said that the petitioner would suffer irreparable injury as whatever loss she stood to suffer could be compensated by damages. On the balance of convenience, it was urged that the balance tilted in favour of denying the orders sought, as the company operations, the employees, customers, and creditors would all be prejudiced if the orders were granted. Counsel stated that the injunctive relief sought was not preservatory but would shut down the company as a going concern.
31. Counsel for the interested party submitted that the petitioner/applicant had not met the test for issuance of a mandatory injunction stated by the Court of Appeal in the case of Maher Unissa Karim v Edward Oluoch Odumba [2015]eKLR.
32. Counsel urged that no case had been made for a Mareva Injunction insofar as she presented no evidence beyond speculative assertions that the company assets were being hidden, disposed of or dissipated. It was submitted that her allegation of misconduct stemmed from the parties' ongoing matrimonial dispute and was not demonstrable corporate wrongdoing. Issuance of such an order would amount to punitive interference with corporate operations.
33. It was urged that the application be dismissed with costs to the interested party.
34. I have considered the application dated 29th August 2025, the responses thereto from the respondent and the interested party, as well as the parties' written submissions. Does the application have merit? What orders should be issued in the circumstances of this case?
35. In my view, these are the issues that this Court must grapple with as it determines the application:
1. Whether the matter should proceed as a derivative suit.
2. Whether a prohibitory injunction should issue as prayed for in prayers 4(a), (b), and (h) of the said application;
3. Whether a mandatory injunction should issue as prayed for in prayers (c) and (i)
4. If a Mareva Injunction should issue as prayed for in prayer 4(g); and
5. Whether the matter is res subjudice.
36. The Notice of Motion application dated 29th August 2025 sought in prayer 2 that:
“This honourable Court be pleased to grant leave to the petitioner/applicant to proceed with this matter as a derivative suit.”
The said prayer was allowed by Lady Justice Florence Wangari on 4th September 2025. The leave so granted has not been challenged either by way of appeal or review. The question as to whether there is in place a derivative action is thus, in my view, moot. Prayer 2 of the said motion was not for interim relief.
37. The respondent raised a preliminary Objection on the ground that the matter before this Court was similar to the one pending before the Kadhi’s Court and Family Division of the High Court. To determine this question, I must set out what section 6 of the Civil Procedure Act states. The same state that:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed...”
38. The Supreme Court of Kenya in the case Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) stated as follows:
“67. The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub judice must therefore establish that there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction, and lastly, that the suits are between the same parties or their representatives.”
39. There is no doubt that the suit at the Kadhi’s Court is between the same parties. The issue before the said Court is divorce, matrimonial property, and the identification and preservation thereof. In the course of the said proceedings, the respondent challenged the jurisdiction of the Kadhi’s Court on the grounds that Article 170(s) of the Constitution of Kenya, 2010 and Section 5 of the Kadhi’s Court Act did not grant the Kadhi’s Court the power to consider and determine matters relating to the internal affairs of companies. The objection was overruled by the Honourable Kadhi in his ruling. That led to the filing of an appeal before the Family Division of the High Court, which is still pending.
40. I note that for the preliminary objection to succeed, the Court must find that the Kadhi’s Court has jurisdiction to hear and determine company matters. That would fly in the face of the respondent's appeal. In essence, the respondent is approbating and reprobating jurisdiction. The respondent should not be allowed to do so. Having said that, it would appear to me that the parties are litigating under different titles: in the matrimonial matter, the contention is that the suit properties are matrimonial properties and thus liable for division, while in the matter before this Court, the issue is the respective rights of the shareholders. In the circumstances, I am not persuaded that the matter is res subjudice.
41. Even assuming I were wrong in that respect, I am not persuaded that the preliminary objection was rightly taken. This is so because ascertaining the capacity in which the parties are litigating naturally calls for the ascertainment of facts and the perusal of a copious volume of documents.
42. In the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (19690 EA 696, it was held that:
“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
Sir Charles Newbold P. added as follows at page 701:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
What flows from the foregoing is that the preliminary objection has no merit. The same is dismissed.
43. Having dismissed the preliminary objection, I must next consider whether an order of prohibitory injunction should be issued. The test applicable whenever a Court is considering whether to issue a prohibitory injunction is well known in East Africa. In the case of Giella v Cassman Brown & Co Ltd (1973) EA 358, it was held that
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, 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.”
44. A prima facie case is one in which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a legal right that has apparently been infringed by the opposite party, thereby calling for an explanation or rebuttal from the latter (see Mrao Ltd v Fast American Bank of Kenya Ltd & 2 others [2003] eKLR 125).
45. Does a prima facie case exist in this matter? It would appear to me that it does. The petitioner and the respondent are both shareholders in the interested party. The losses suffered by the interested party, the incorporation of Simba 555 Motors Ltd, the reduction of the interested party's business and the increase in that of Simba 555 Motors Ltd, all show that the petitioner's suit is not idle and that the respondent's dealings in the interested party and Simba 555 Motors Ltd require further scrutiny at the trial, on the merits.
46. In my view, there is a clear and present risk that, if the orders sought aren’t granted, the damage to the petitioner would be irreparable. I am not persuaded that, in this case, the mere fact that the respondent would be able to pay up if the petitioner were successful is sufficient to warrant him acting with what may be said to be impunity.
47. Lastly, the balance of convenience favours the grant of an injunction, as not to issue it would result in the exclusion of the petitioner from the business and probable dissipation of the business of the interested party. In the circumstances, I am persuaded that a prohibitory injunction should issue as prayed for in prayers 4(a), (b) and (h) of the Notice of Motion dated 29th August 2025.
48. It is true that mandatory injunctions are sparingly granted. The Court of Appeal quoted with approval Halsbury’s Law of England, vol 24, 4th Edition, paragraph 948 in the case of Maher Unissa Karim v Edward Oluoch Odumbe [2015] KEHC 4029 (KLR), wherein it was stated that:
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a match from the plaintiff, a mandatory injunction will be granted on an interlocutory application.
In the English case of Locabail International Finance Ltd vs Agro Export & Another (1986), ALL ER 901, which the Court of Appeal in Kenya has followed with approval in many decisions, the court held that:-
“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction, the court has to feel a high sense of assurance that at the end of the trial it would appear that the injunction had been rightly granted, that being a different and higher standard than required for a prohibitory injunction.”
49. As earlier stated, the existence of 2 companies with almost similar names, together with the apparent ceasing of the business of the interested party while that of Simba 555 Motors Ltd grew, creates an uncomfortable suspicion that what the petitioner stated as amounting to parallel trading and an attempt to steal a match from the petitioner is not without justification.
50. In the circumstances, I am persuaded that it would be fair and just to issue carefully calibrated orders that protect the business of the interested party while allowing it to trade as a going concern. Accordingly, I allow prayer 4(c), excluding Simba 555 Motors Ltd and its business, as it wasn’t a party, and prayer 4(i), for the production of the interested party’s financial records, books of account and bank statements from 2022 to date.
51. On the issue of mareva injunction, I am persuaded that to prevent the respondent from accessing the interested party’s accounts or to freeze the accounts of the interested party will be oppressive. Such an action, in any event, will be counterproductive as the interested party will thereby be unable to trade and won't, as they say, be a going concern anymore. This is not a case in which the holding in Ngugi v Mwihaki & another [2025] KEHC 11805 (KLR) applies.
52. Based on the foregoing, the orders that commend themselves to me are the following:
1. Pending the hearing and determination of the Petition an order of injunction is hereby issued restraining the respondent by himself, agents, servants or any other person acting on his behalf from disposing of, transferring, alienating or otherwise, from dealing with the assets, funds, or any property of the interested party without the involvement, consent or consultation of the petitioner;
2. Pending the hearing and determination of the Petition, an order of injunction is hereby issued restraining the respondent, by himself, agents, servants or any other person acting on his behalf, from proceeding to divert the business of the interested party to the new similar company known as Simba 555 Motors Ltd, owned by the respondent;
3. Pending the hearing and determination of the Petition, an order of injunction is issued directing the respondent, by himself, agents, servants or any other person acting on his behalf, to deposit all the income generated from the business of the interested party into the designated bank account of the interested party held at the Equity Bank Kenya account numbers 1380283538900 and 1380182402368 in Nyali branch Mombasa and KCB
[...truncated]
2. The petitioner avers that, as the director of the interested party, the respondent has a duty to manage the company's affairs in the best interests of the minority shareholders. As a minority shareholder, she avers that she is entitled to receive dividends, participate in decision-making, and have access to information, including all books of account, financial records, and financial statements of the interested party.
3. She contends that, contrary to the foregoing, the petitioner has excluded her from the affairs of the interested party and has been running the company as his own personal property in a manner that is unfair, prejudicial and oppressive to the petitioner, by sidelining her in decision-making, failing to pay dividends, refusing to grant her access to the interested party’s books of account, records and financial statements, not holding annual general meetings, delaying the accounts, depriving the petitioner of the right to know the state of the company, incorporating another company known as Simba 555 Motors Ltd, which conducts business similar to that of the interested party, in which he is the sole director and shareholder, and diverting the business of the interested party to that company.
4. The petitioners aver that the said conduct amounts to breaches of statutory duty of care, fiduciary duty, and duty of loyalty, constitutes a conflict of interest, and is unfair and oppressive conduct contrary to sections 780 and 782 of the Companies Act. She apprehends that there is a clear and present danger of the dissipation of the interested party’s assets and the concealment of financial mismanagement unless this Court urgently intervenes, and that unless he is restrained, the petitioner will suffer irreparable harm and loss which cannot be compensated by payment of damages.
5. The respondent opposes the application, as does the interested party. Their main contention is that the present application is res sub judice, as a similar application is pending before the Kadhi’s Court and in the Family Division of this Court. It is further contended that the grant of the orders sought will grind the business of the interested party to a standstill and would be oppressive. The Court is urged to dismiss the application with costs.
6. Based on the foregoing, the petitioner filed the Notice of Motion dated 29th August 2025. Vide the said Motion she sought the following orders:
1. Spent;
2. This honourable Court be pleased to grant leave to the petitioner/applicant to proceed with this matter as a derivative suit;
3. Spent;
4. Pending the hearing and determination of the petition, the Court be pleased to issue the following interim orders:-
a. An order of injunction be issued restraining the respondent by himself, agents, servants or any other person acting on his behalf from disposing of, transferring, alienating or otherwise, from dealing with the assets, funds, or any property of the interested party without the involvement, consent or consultation of the petitioner/Applicant;
b. An order of injunction be issued restraining the respondent, by himself, agents, servants or any other person acting on his behalf, from proceeding to divert the business of the interested party to the new similar company known as Simba 555 Motors Ltd, owned by the respondent;
c. An order of injunction be issued directing the respondent by himself, agents, servants or any other person acting on his behalf to deposit all the income generated from the business of the Interested Party and the new registered company known as Simba 555 Motors Ltd derived from sale of motor vehicles into the designated bank account of the interested party held at the Equity Bank Kenya account number 1380283538900 and 1380182402368 in Nyali branch Mombasa and KCB account numbers 1297123042, situate at Nyali Branch, Mombasa and any other bank account where the respondent is the ultimate beneficial owner;
d. An order to freeze and or prevent and or restrain the respondent from withdrawing any funds in account numbers 1380283538900 and 1380182402368 in the Nyali branch, Mombasa, and KCB account numbers 1297123042 situate at the Nyali branch, Mombasa and any other bank account where the respondent is the ultimate beneficial owner;
e. An order of injunction be issued to restrain National Transport and Safety Authority (NTSA ) from effecting transfers of the Interested Party's motor vehicles registration numbers KDS 613L, KDS 137R, KDT152C, KDS885Y, KDS 656F, KDS 034F and any other motor vehicles owned by the Interested Party herein; and
f. An order of injunction be issued to compel the respondent to produce the financial records, books of account and bank statements of the interested party from 2022 to date;
5. Costs of this application be borne by the respondent.
7. The application is grounded on averments I have already stated. In addition, the petitioner avers that she faces the risk of tax non-compliance and may consequently be subjected to onerous obligations. She therefore prays that the orders sought be issued to preserve the interested party’s assets and to enforce shareholder rights pending the hearing and determination of the petition. She further contends that there would be a miscarriage of justice unless the orders sought are granted.
8. Upon preliminary consideration of the matter, Florence Wangari, J, granted temporary relief in respect of prayers 2 (allowing the petitioner to proceed with this matter as a derivative suit) and 3(a), (b) and (e) of the said application, pending directions that would be issued inter partes.
9. Upon being served, the respondent filed a notice of preliminary objection dated 16th September 2025, vide which he contended that there was a similar application pending in Mombasa Kadhi’s Court Divorce Petition No E075 of 2025 seeking similar prayers and that a decision in the latter matter was appealed to this Court vide Mombasa HCFA No E042 of 2025. It was contended that the matters were therefore res sub judice and should be struck out and interim orders discharged.
10. The respondent also filed a replying affidavit sworn on 16th September 2025. In that affidavit, the respondent averred that a similar application was before the Kadhi’s Court, where the learned Kadhi ruled that he had jurisdiction to hear and determine issues relating to the running and management of limited liability companies. Dissatisfied with that decision, he filed an appeal in Mombasa HCFA No E042 of 2025 and obtained interim orders. The respondent urged that the application ought to be struck out as res sub judice to the 2 matters, with costs, or, in the alternative, be stayed pending the hearing and determination of the suit and appeal, and that the interim orders be discharged forthwith.
11. The respondent averred that he had given the petitioner shares in the company and that she made no monetary contribution towards the capital or the business of the company. On that basis, he contended that he did not owe her a duty to disclose details of the company, except for audited accounts, nor was she entitled to dividends. That notwithstanding, he had paid the petitioner a substantial sum via M-Pesa.
12. He accused the petitioner of chasing him from their matrimonial home and of not checking out the books of account, despite these being available. The respondent averred that if the orders are granted, the business of the interested party would grind to a halt and that innocent third parties, in particular, car purchasers, would be adversely affected. He prayed that the interim orders be discharged.
13. The respondent annexed to the response the documents filed in the Kadhi’s Court in support of his contention that both matters were between the same parties and concerned the same subject matter.
14. The interested party also opposed the application dated 29th August 2025 by filing a reply affidavit, sworn on 15th October 2025, by Mr Shabbir Mohamed Harunany, in his capacity as the interested party's sole director. Mr Harunany deposed that he had complied with all fiduciary and statutory obligations under the Companies Act, 2015, and with the company's Articles of Association. He denied the allegation of breach of his statutory obligations, contending that the petitioner had not produced credible evidence in support of her claim.
15. Mr Harunany further contended that the interested party was a going concern with obligations to customers, employees, suppliers, and the Kenya Revenue Authority, and that if the order sought were issued, it would cripple the company, jeopardize contractual obligations, expose it to defaults and penalties, and irreparably harm the company's reputation and goodwill.
16. It was contended that there was a distinction between the role of a director, which the petitioner wasn’t, and her status as a shareholder. Mr Harunany stated that the petitioner had not shown that she had been denied any rights exercisable by her as a shareholder. He further contended that it hadn’t been shown that a derivative suit could properly be filed, as what was pending in court wasn’t brought in good faith, for the benefit of the company, and did not raise a serious question regarding alleged wrongdoing against the company. He further contended that the petitioner hadn’t shown that it would be futile to invoke the company’s internal mechanisms before rushing to Court.
17. Mr Harunany contended that the petition was closely tied to the matrimonial proceedings. He averred that the Commercial Court was not a proper arena for the resolution of matrimonial disputes and that corporate remedies were being used as a leverage in the latter proceedings. He accused the petitioner of not exhausting the available remedies, for example, by failing to requisition an annual general meeting. Regarding dividends, he contended that no dividends were payable, as the company had incurred losses since 2022, as evidenced by the financial statements annexed as exhibits “SMH1” and “SMH2”. He averred that the issuance of the orders sought by the petitioner would be draconian, would halt day-to-day trading, would precipitate defaults with its financiers and suppliers, and would inflict irreparable harm to the company's goodwill and solvency.
18. It was also contended that the petitioners could access the company’s books of account by following the proper statutory procedure. He also denied that there had been any breach of the company’s tax obligations.
19. The petitioner filed supplementary and further affidavits, sworn on 14th and 28th October 2025, respectively, in which she averred that the sub judice doctrine was inapplicable because the subject of these proceedings was a derivative action, whereas the other proceedings were matrimonial and divorce proceedings. It was urged that the Kadhi’s Court has no jurisdiction to determine company matters. She deposed that it was necessary to issue the orders sought in the interests of justice.
20. The application was canvassed through written submissions. I will summarise the submissions below.
21. The petitioner/applicant’s submissions are dated 2nd November 2025. The petitioner submitted that the respondent fraudulently diverted business from the interested party to Simba 555 Motors Ltd, made false declarations to the Registrar of Companies, concealed accounts and statutory records, falsified and fabricated financial records, diverted and sold motor vehicles through another entity, oppressed and excluded the petitioner from all management and communication platforms, defied Court orders, and abused the corporate form for personal enrichment.
22. It was submitted that the preliminary objection wasn’t rightly taken as it invites the Court to interrogate facts. Counsel submitted that the Kadhi’s Court cannot determine issues of corporate governance, statutory suits, offences by directors, taxation, and that the reliefs sought are the enforcement of directors’ statutory duties and recovery of diverted corporate income.
23. The petitioner submitted that the issues for determination were:-
1. Whether the petitioner/applicant was a bona fide shareholder of the interested party;
2. Whether the respondent’s conduct was oppressive, fraudulent and in breach of fiduciary duty;
3. Whether the incorporation of Simba 555 Motors Ltd was intended to divert corporate opportunity;
4. Whether the Court should lift the corporate veil;
5. Whether the reliefs sought are just and equitable
24. In response to the 1st to 4th issues, the petitioner submitted that the answer was in the affirmative. That being the case, it was urged that orders sought ought to issue.
25. The submissions of the Respondent are dated 26th November 2025. The submissions are in opposition to the application and in support of the grounds of opposition and the preliminary objection. It was urged in support of the preliminary objection that there was a similar application pending in Kadhi’s Court, to wit, Divorce Petition No E075 of 2025 and that there was also an appeal in Mombasa HCFA No E042 of 2025, which is pending. That being the case, the matter is subjudice. Reliance was placed in the following cases: Khalid Swaleh Hantoosh v Mohamed Swaleh Karama Hantoosh; HCP&A No E012 of 2023, Mombasa HCC No 270 of 2005; Abdul Kassim Hassanali Gulamhussein Khala v Southern Credit Banking Corporation Ltd, and Nairobi CACA No 100 & 106 of 2010; Kenya Commercial Bank Ltd v Muiru Coffee Estate Ltd & 3 others. It was urged that the preliminary objection be upheld.
26. It was submitted that no case had been made for the issuance of injunctive relief on the ground that the petitioner and the respondent were still a married couple and that there had been no squabbles until the High Court issued stay orders in HCFA No E042 of 2025 on 30th July 2025, when the petitioner filed this petition. It was further contended that no evidence of adverse action by the respondent in the running of the company had been shown, and that the petitioner had not shown how much share capital she had invested in the interested party, nor any adverse action against her nominal shares. Reliance was placed on the case of Mombasa HCCC No E061 of 2025; Exon Investments Ltd v SBM Bank Kenya Ltd & another.
27. Counsel submitted that the appropriate test for bringing a derivative action was not met. In support of this, the Court was urged to consider the dictum in Nairobi CACA No 165 of 2017; Sultan Hasham Lalji & Trio Holdings Ltd & 2 others.
28. The counsel for the Respondent therefore prayed that the application for an injunction be dismissed with costs.
29. On its part, the interested party filed written submissions dated 28th November 2025 through its counsel on record. The following were identified as issues coming up for determination
1. Whether the petitioner met the test for the grant of an interlocutory injunction;
2. Whether the petitioner/applicant met the test for issuance of a mandatory injunction; and
3. Whether the petitioner met the test for issuance of a Mareva injunction
30. It was submitted that the petitioner failed to show that she had met the test for the grant of interlocutory injunction relief, as authoritatively stated in the case of Giella v Cassman Brown & Co Ltd [1973]EA 358. This was so because she hadn’t shown that she had a prima facie with probability of success, insofar as she had no right to participate in the management of the company, to receive dividends where the company was making losses. It was submitted that it could not be said that the petitioner would suffer irreparable injury as whatever loss she stood to suffer could be compensated by damages. On the balance of convenience, it was urged that the balance tilted in favour of denying the orders sought, as the company operations, the employees, customers, and creditors would all be prejudiced if the orders were granted. Counsel stated that the injunctive relief sought was not preservatory but would shut down the company as a going concern.
31. Counsel for the interested party submitted that the petitioner/applicant had not met the test for issuance of a mandatory injunction stated by the Court of Appeal in the case of Maher Unissa Karim v Edward Oluoch Odumba [2015]eKLR.
32. Counsel urged that no case had been made for a Mareva Injunction insofar as she presented no evidence beyond speculative assertions that the company assets were being hidden, disposed of or dissipated. It was submitted that her allegation of misconduct stemmed from the parties' ongoing matrimonial dispute and was not demonstrable corporate wrongdoing. Issuance of such an order would amount to punitive interference with corporate operations.
33. It was urged that the application be dismissed with costs to the interested party.
34. I have considered the application dated 29th August 2025, the responses thereto from the respondent and the interested party, as well as the parties' written submissions. Does the application have merit? What orders should be issued in the circumstances of this case?
35. In my view, these are the issues that this Court must grapple with as it determines the application:
1. Whether the matter should proceed as a derivative suit.
2. Whether a prohibitory injunction should issue as prayed for in prayers 4(a), (b), and (h) of the said application;
3. Whether a mandatory injunction should issue as prayed for in prayers (c) and (i)
4. If a Mareva Injunction should issue as prayed for in prayer 4(g); and
5. Whether the matter is res subjudice.
36. The Notice of Motion application dated 29th August 2025 sought in prayer 2 that:
“This honourable Court be pleased to grant leave to the petitioner/applicant to proceed with this matter as a derivative suit.”
The said prayer was allowed by Lady Justice Florence Wangari on 4th September 2025. The leave so granted has not been challenged either by way of appeal or review. The question as to whether there is in place a derivative action is thus, in my view, moot. Prayer 2 of the said motion was not for interim relief.
37. The respondent raised a preliminary Objection on the ground that the matter before this Court was similar to the one pending before the Kadhi’s Court and Family Division of the High Court. To determine this question, I must set out what section 6 of the Civil Procedure Act states. The same state that:
“No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed...”
38. The Supreme Court of Kenya in the case Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) [2020] KESC 54 (KLR) stated as follows:
“67. The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub judice must therefore establish that there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction, and lastly, that the suits are between the same parties or their representatives.”
39. There is no doubt that the suit at the Kadhi’s Court is between the same parties. The issue before the said Court is divorce, matrimonial property, and the identification and preservation thereof. In the course of the said proceedings, the respondent challenged the jurisdiction of the Kadhi’s Court on the grounds that Article 170(s) of the Constitution of Kenya, 2010 and Section 5 of the Kadhi’s Court Act did not grant the Kadhi’s Court the power to consider and determine matters relating to the internal affairs of companies. The objection was overruled by the Honourable Kadhi in his ruling. That led to the filing of an appeal before the Family Division of the High Court, which is still pending.
40. I note that for the preliminary objection to succeed, the Court must find that the Kadhi’s Court has jurisdiction to hear and determine company matters. That would fly in the face of the respondent's appeal. In essence, the respondent is approbating and reprobating jurisdiction. The respondent should not be allowed to do so. Having said that, it would appear to me that the parties are litigating under different titles: in the matrimonial matter, the contention is that the suit properties are matrimonial properties and thus liable for division, while in the matter before this Court, the issue is the respective rights of the shareholders. In the circumstances, I am not persuaded that the matter is res subjudice.
41. Even assuming I were wrong in that respect, I am not persuaded that the preliminary objection was rightly taken. This is so because ascertaining the capacity in which the parties are litigating naturally calls for the ascertainment of facts and the perusal of a copious volume of documents.
42. In the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (19690 EA 696, it was held that:
“…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which, if argued as a preliminary point, may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”
Sir Charles Newbold P. added as follows at page 701:
“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”
What flows from the foregoing is that the preliminary objection has no merit. The same is dismissed.
43. Having dismissed the preliminary objection, I must next consider whether an order of prohibitory injunction should be issued. The test applicable whenever a Court is considering whether to issue a prohibitory injunction is well known in East Africa. In the case of Giella v Cassman Brown & Co Ltd (1973) EA 358, it was held that
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, 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.”
44. A prima facie case is one in which, on the material presented to the Court, a tribunal properly directing itself will conclude that there exists a legal right that has apparently been infringed by the opposite party, thereby calling for an explanation or rebuttal from the latter (see Mrao Ltd v Fast American Bank of Kenya Ltd & 2 others [2003] eKLR 125).
45. Does a prima facie case exist in this matter? It would appear to me that it does. The petitioner and the respondent are both shareholders in the interested party. The losses suffered by the interested party, the incorporation of Simba 555 Motors Ltd, the reduction of the interested party's business and the increase in that of Simba 555 Motors Ltd, all show that the petitioner's suit is not idle and that the respondent's dealings in the interested party and Simba 555 Motors Ltd require further scrutiny at the trial, on the merits.
46. In my view, there is a clear and present risk that, if the orders sought aren’t granted, the damage to the petitioner would be irreparable. I am not persuaded that, in this case, the mere fact that the respondent would be able to pay up if the petitioner were successful is sufficient to warrant him acting with what may be said to be impunity.
47. Lastly, the balance of convenience favours the grant of an injunction, as not to issue it would result in the exclusion of the petitioner from the business and probable dissipation of the business of the interested party. In the circumstances, I am persuaded that a prohibitory injunction should issue as prayed for in prayers 4(a), (b) and (h) of the Notice of Motion dated 29th August 2025.
48. It is true that mandatory injunctions are sparingly granted. The Court of Appeal quoted with approval Halsbury’s Law of England, vol 24, 4th Edition, paragraph 948 in the case of Maher Unissa Karim v Edward Oluoch Odumbe [2015] KEHC 4029 (KLR), wherein it was stated that:
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempts to steal a match from the plaintiff, a mandatory injunction will be granted on an interlocutory application.
In the English case of Locabail International Finance Ltd vs Agro Export & Another (1986), ALL ER 901, which the Court of Appeal in Kenya has followed with approval in many decisions, the court held that:-
“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction, the court has to feel a high sense of assurance that at the end of the trial it would appear that the injunction had been rightly granted, that being a different and higher standard than required for a prohibitory injunction.”
49. As earlier stated, the existence of 2 companies with almost similar names, together with the apparent ceasing of the business of the interested party while that of Simba 555 Motors Ltd grew, creates an uncomfortable suspicion that what the petitioner stated as amounting to parallel trading and an attempt to steal a match from the petitioner is not without justification.
50. In the circumstances, I am persuaded that it would be fair and just to issue carefully calibrated orders that protect the business of the interested party while allowing it to trade as a going concern. Accordingly, I allow prayer 4(c), excluding Simba 555 Motors Ltd and its business, as it wasn’t a party, and prayer 4(i), for the production of the interested party’s financial records, books of account and bank statements from 2022 to date.
51. On the issue of mareva injunction, I am persuaded that to prevent the respondent from accessing the interested party’s accounts or to freeze the accounts of the interested party will be oppressive. Such an action, in any event, will be counterproductive as the interested party will thereby be unable to trade and won't, as they say, be a going concern anymore. This is not a case in which the holding in Ngugi v Mwihaki & another [2025] KEHC 11805 (KLR) applies.
52. Based on the foregoing, the orders that commend themselves to me are the following:
1. Pending the hearing and determination of the Petition an order of injunction is hereby issued restraining the respondent by himself, agents, servants or any other person acting on his behalf from disposing of, transferring, alienating or otherwise, from dealing with the assets, funds, or any property of the interested party without the involvement, consent or consultation of the petitioner;
2. Pending the hearing and determination of the Petition, an order of injunction is hereby issued restraining the respondent, by himself, agents, servants or any other person acting on his behalf, from proceeding to divert the business of the interested party to the new similar company known as Simba 555 Motors Ltd, owned by the respondent;
3. Pending the hearing and determination of the Petition, an order of injunction is issued directing the respondent, by himself, agents, servants or any other person acting on his behalf, to deposit all the income generated from the business of the interested party into the designated bank account of the interested party held at the Equity Bank Kenya account numbers 1380283538900 and 1380182402368 in Nyali branch Mombasa and KCB
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