EX TEMPORE RULING
I have listened to the parties in relation to the 3 applications filed before me in this matter. I note that this court is being invited to interfere with the management of a company that is operational and a going concern. From proceedings, it is clear that parties have chosen to operate the company through the court, a process not envisioned by the Companies Act. It is noteworthy that parties have received various decisions in several matters from the High Court and yet no appeal has been lodged or preferred to set aside or to vary those decisions. The recent decision in HCCC E564/2023 mandated that funds held by Safaricom be paid to the Nominal Defendants (Company) accounts held in the 2nd Interested Party bank. The plaintiff has confirmed that he has no objection to the same being done,
The Companies Act has set out an elaborate process on how Companies that are a going concern should be managed. It is therefore, important that issues relating to management of Companies be dealt with in accordance with the Companies Act and not through the courts, until such a time that a Company or its members require the protection or intervention of the court, which is when a company is facing difficulties or is either on the verge of being wound up. To my mind, the nominal Defendant Company being fully operational, its decisions should be done or carried out through Board Resolution at Annual or Special General Meetings. The Plaintiff is a member as a shareholder of the nominal defendant company with full rights to move for a special general meeting to discuss any issue with the company in the right manner. It is therefore, my view that this court will not interfere with the affairs of the nominal defendant company as it is being invited to do.
The Court has issued ex-parte orders that affect the operations of the nominal Defendant Company at the behest of the Plaintiff. I am persuaded that this s not what the court should be doing at this stage when this court when the Company is operational. The net effect of the finding is that the interim orders issued by this court ex-parte on 27th February 2024 are hereby vacated. All the subsequent motions filed herein by the parties are set aside. The main suit be mentioned for pre-trial compliance before the Deputy Registrar on 9th April 2024.
It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 13th DAY of MARCH, 2024
………………………………………..
J.W.W. MONG’ARE
JUDGE
In the Presence of;
1. Mr. Rotich for the Plaintiff
2. Mr. Midenga for the 1st Respondent and the Nominal Defendant Company
3. Mr. Omwanza Nyameya for the 2nd Respondent
4. Amos- Court Assistant.