1. The 1st Plaintiff holds 200 shares in the 2nd Plaintiff. 800 shares were held by Mr Italo Ceccagnoli, who died on 21st February 2024. The 1st Plaintiff contends that he was the deceased's son and survived him; hence, he is entitled to the shares the deceased held, as a beneficiary of his estate under a will dated 17th September 2018.
2. The 1st Plaintiff accused the 1st to 3rd Defendants of unlawfully taking over the 2nd Plaintiff. He averred that they had plundered its assets, removed the office furniture from the registered office, and alienated other assets, including vehicles and machinery. He therefore filed the Notice of Motion dated 9th April 2024, by which he sought orders of injunction against dealing with the company's assets or operating its accounts pending the hearing and determination of the application. In support of the application, the 1st Plaintiff made sworn depositions and annexed a copy of the deceased's alleged last will and testament, the alleged results of a DNA profiling test comparing his samples with those allegedly extracted from the deceased's remains, and Form CR12 in respect of the 2nd Plaintiff, which shows that he indeed had 200 shares while the deceased had 800 shares.
3. On their part, the 1st and 3rd Defendants filed a replying affidavit, sworn by Paulo Basta on 21st May 2024, in which they contended that the deceased had a will dated 13th January 2021, under which Paolo Basta and Pasquale Pes were appointed as executors. They also contended that the 2nd Plaintiff is a limited liability company engaged in retail and wholesale trade in food products.
4. The deponent deposed that, since the 1st Plaintiff resides in Milan, Italy, they applied for and obtained a grant ad colligenda bona from the Family Court for the purpose of collecting and getting in the estate, receiving the estate, and doing such acts as may be necessary for the preservation of the estate, specifically by appointing the 1st Defendant as the director of the 2nd Plaintiff. This court, sitting as the Family Court, issued a limited grant, which has not been set aside, and did in fact appoint the said Monica Kipkorir as a director. It was urged that the grant had not been set aside or revoked.
5. The 4th Respondent, on its part, filed a sworn deposition from Ms Lynette Kamande, its Head of Legal Service and Company Secretary, in which she contended that the 4th Respondent complied with court orders. She deposed that unless the orders, to wit, the limited grant of letters of administration ad colligenda bona, were set aside, it would comply.
6. The counsel for the 1st to 3rd Respondents filed a preliminary objection dated 6th May 2024, opposing the suit on the ground that, as a shareholder, the 1st Plaintiff could not sue on behalf of the company unless he first obtained leave of the Court to file a derivative suit, and that, in any case, he had not obtained authority to do so. He contended that the matter was the subject of succession proceedings and hence was res sub judice. I was referred to Succession Cause No E018 of 2024, re the Estate of Italo Ceccagnoli alias Ceccagnoli Italo Alfredo Eugenio (deceased).
7. The motion and the preliminary objection were canvassed by way of written submissions. I have carefully perused the filings in the CTS. I have not seen the Plaintiffs' submissions. The submissions are also not in the court file.
8. The submissions of the 1st to 3rd Defendants are dated 21st October 2025. I have considered the parties' pleadings, the affidavits on record, and the annexures thereto. As the preliminary objection raises jurisdictional questions, I will consider it first.
9. It is common ground that the 1st plaintiff is not a director of the 2nd Defendant. He holds 200 shares. In his pleadings, he refers to a will and avers that, as a survivor, he is entitled to take over what belonged to his alleged deceased father. The 1st to 3rd defendants deny that he is the son of the deceased and aver that the deceased made another will in 2021, appointing the 2nd and 3rd defendants/respondents as executors.
10. It is self-evident that the dispute is on the management and operation of the 2nd Plaintiff. Can the 1st Plaintiff bring a suit as he purports to do here? In my view, he cannot do so unless he complies with what the Companies Act, 2015 states regarding derivative claims.
11. Section 238(2) of the Companies Act, 2015 is instructive. It states that:
“(2)A derivative claim may be brought only:
(a) Under this Part; or
(b) In accordance with an order of the Court in proceedings for protection of members against unfair prejudice brought under this Act.”
12. The 1st Plaintiff did not obtain leave to commence these proceedings prior to doing so, nor has any been obtained to continue with the same. I agree with what was stated in Ghelani Metals Limited & 3 others v Elesh Ghelani Natwarlal & another [2017] KEHC 4629 (KLR) where it was stated that:
“40. With the advent of the Act, the law fundamentally changed. The requirement to fall under the exceptions to the rule in Foss v Harbottle was replaced with judicial discretion to grant permission to continue a derivative action. Judicial approval of the action is what now counts, and such approval is based on broad judicial discretion and sound judgment without limit but with statutory guidance.”
13. On that ground alone this suit is incompetent.
14. The foregoing notwithstanding, I would agree with the 1st, 2nd and 3rd defendants that no authorization for and on behalf of the 2nd Plaintiff to sue was granted. See Affordable Homes Africa Ltd v Henderson & 2 others [2004] KEHC 2682 (KLR) and Saraf Limited v Augusto Arduin [2016] KECA 177 (KLR).
15. This further point buttresses my earlier finding that the suit is incompetent and is for striking out.
16. In the circumstances, I uphold the preliminary objection and strike out the suit herein with costs to the 1st, 2nd and 3rd Defendants.
17. Having done so, it isn’t necessary for me to consider the application for an injunction on the merits.
18. Ordered accordingly.
Dated and signed at Nairobi this 30th day of July 2026.
2. The 1st Plaintiff accused the 1st to 3rd Defendants of unlawfully taking over the 2nd Plaintiff. He averred that they had plundered its assets, removed the office furniture from the registered office, and alienated other assets, including vehicles and machinery. He therefore filed the Notice of Motion dated 9th April 2024, by which he sought orders of injunction against dealing with the company's assets or operating its accounts pending the hearing and determination of the application. In support of the application, the 1st Plaintiff made sworn depositions and annexed a copy of the deceased's alleged last will and testament, the alleged results of a DNA profiling test comparing his samples with those allegedly extracted from the deceased's remains, and Form CR12 in respect of the 2nd Plaintiff, which shows that he indeed had 200 shares while the deceased had 800 shares.
3. On their part, the 1st and 3rd Defendants filed a replying affidavit, sworn by Paulo Basta on 21st May 2024, in which they contended that the deceased had a will dated 13th January 2021, under which Paolo Basta and Pasquale Pes were appointed as executors. They also contended that the 2nd Plaintiff is a limited liability company engaged in retail and wholesale trade in food products.
4. The deponent deposed that, since the 1st Plaintiff resides in Milan, Italy, they applied for and obtained a grant ad colligenda bona from the Family Court for the purpose of collecting and getting in the estate, receiving the estate, and doing such acts as may be necessary for the preservation of the estate, specifically by appointing the 1st Defendant as the director of the 2nd Plaintiff. This court, sitting as the Family Court, issued a limited grant, which has not been set aside, and did in fact appoint the said Monica Kipkorir as a director. It was urged that the grant had not been set aside or revoked.
5. The 4th Respondent, on its part, filed a sworn deposition from Ms Lynette Kamande, its Head of Legal Service and Company Secretary, in which she contended that the 4th Respondent complied with court orders. She deposed that unless the orders, to wit, the limited grant of letters of administration ad colligenda bona, were set aside, it would comply.
6. The counsel for the 1st to 3rd Respondents filed a preliminary objection dated 6th May 2024, opposing the suit on the ground that, as a shareholder, the 1st Plaintiff could not sue on behalf of the company unless he first obtained leave of the Court to file a derivative suit, and that, in any case, he had not obtained authority to do so. He contended that the matter was the subject of succession proceedings and hence was res sub judice. I was referred to Succession Cause No E018 of 2024, re the Estate of Italo Ceccagnoli alias Ceccagnoli Italo Alfredo Eugenio (deceased).
7. The motion and the preliminary objection were canvassed by way of written submissions. I have carefully perused the filings in the CTS. I have not seen the Plaintiffs' submissions. The submissions are also not in the court file.
8. The submissions of the 1st to 3rd Defendants are dated 21st October 2025. I have considered the parties' pleadings, the affidavits on record, and the annexures thereto. As the preliminary objection raises jurisdictional questions, I will consider it first.
9. It is common ground that the 1st plaintiff is not a director of the 2nd Defendant. He holds 200 shares. In his pleadings, he refers to a will and avers that, as a survivor, he is entitled to take over what belonged to his alleged deceased father. The 1st to 3rd defendants deny that he is the son of the deceased and aver that the deceased made another will in 2021, appointing the 2nd and 3rd defendants/respondents as executors.
10. It is self-evident that the dispute is on the management and operation of the 2nd Plaintiff. Can the 1st Plaintiff bring a suit as he purports to do here? In my view, he cannot do so unless he complies with what the Companies Act, 2015 states regarding derivative claims.
11. Section 238(2) of the Companies Act, 2015 is instructive. It states that:
“(2)A derivative claim may be brought only:
(a) Under this Part; or
(b) In accordance with an order of the Court in proceedings for protection of members against unfair prejudice brought under this Act.”
12. The 1st Plaintiff did not obtain leave to commence these proceedings prior to doing so, nor has any been obtained to continue with the same. I agree with what was stated in Ghelani Metals Limited & 3 others v Elesh Ghelani Natwarlal & another [2017] KEHC 4629 (KLR) where it was stated that:
“40. With the advent of the Act, the law fundamentally changed. The requirement to fall under the exceptions to the rule in Foss v Harbottle was replaced with judicial discretion to grant permission to continue a derivative action. Judicial approval of the action is what now counts, and such approval is based on broad judicial discretion and sound judgment without limit but with statutory guidance.”
13. On that ground alone this suit is incompetent.
14. The foregoing notwithstanding, I would agree with the 1st, 2nd and 3rd defendants that no authorization for and on behalf of the 2nd Plaintiff to sue was granted. See Affordable Homes Africa Ltd v Henderson & 2 others [2004] KEHC 2682 (KLR) and Saraf Limited v Augusto Arduin [2016] KECA 177 (KLR).
15. This further point buttresses my earlier finding that the suit is incompetent and is for striking out.
16. In the circumstances, I uphold the preliminary objection and strike out the suit herein with costs to the 1st, 2nd and 3rd Defendants.
17. Having done so, it isn’t necessary for me to consider the application for an injunction on the merits.
18. Ordered accordingly.
Dated and signed at Nairobi this 30th day of July 2026.