This is the 4 th matter I am handling involving the plaintiff and his sister the 1 st defendant after E006 of 2024, E007 of 2025 and E008 of 2025. All are coming for ruling today and I think I have said enough of the relationship between the two siblings in the other three matters safe to add that judges and judicial officers though human beings, are unfortunately not expected to exhibit personal bias when matters they before them appear to be repetitive or replica of many others. It is their duty to give parties a hearing and make decisions despite the number of times they are approached.
The notice of motion to which this ruling relates and affidavit in support thereof is same word for word as in E007 of 2025 and E008 of 2025. The only difference is the name and identity of the 3 rd defendants in all the suits. No matter how boring and tiresome reading the same arguments in three matters is, I am duty bound to handle each of the matters on their own merits and I will do that.
The notice of motion dated 9 th May 2025 in this matter prayed for the following orders;
a. Spent.
b. Spent.
c. Spent.
d. THAT leave be and do hereby issue for the applicant to institute a derivative suit as against the 3 rd respondent.
e. THAT this Honourable Court do issue orders compelling the 1 st respondent, to render a full account of all transactions, dealings, liabilities and benefits obtained by or through the 3 rd respondent through the applicant's credentials including bank statements, loan applications, disbursements and usage.
f. THAT this Honourable Court be pleased to issue orders restraining the 1 st respondent from acting as an agent of the 3 rd respondent and incurring and/or undertaking any liabilities on behalf of the 3 rd respondent pending the hearing and determination of the suit filed herewith.
g. THAT this Honourable Court be pleased to issue orders restraining the 2 nd respondent from registering any debentures over the 3 rd respondent's assets pending hearing and determination of the suit filed herewith.
h. THAT the Honourable Court be pleased to issue such further orders as it may deem just and expedient in the circumstances of this case.
i. THAT costs of this application be in the cause.
Just like in the other two applications in the suits mentioned above, this application’s eight grounds are in summary that; the plaintiff was included and registered as a director of the 3 rd defendant at the time of registration without his consent, the signatures appearing in the documents filed with the 2 nd defendant during incorporation of the 3 rd defendant were not plaintiff’s and are forgeries and the plaintiff fears that the 1 st defendant may use his properties to secure loans from banks and other financial institution using the 3 rd defendant without his knowledge or consent. Again, the plaintiff’s supporting affidavit dated 9 th May 2025 makes what I would call a carbon copy of the averments as in the other two suits the only difference being the name and the status of the 3 rd defendant who unlike in the other suits is not a limited liability company and some adjustments to suit that status. That notwithstanding, I will reproduce the same as hereinbelow.
The plaintiff depones that sometime in 2015 out of desire to invest in moveable and immovable properties in Kenya, he executed a power of attorney in favour of the 1 st defendant with a purpose of her identifying, negotiating and purchasing real property in Kenya on his behalf. The 1 st defendant abused this relationship by registering the 3 rd defendant with him as proprietor without his knowledge or consent. The plaintiff alleges that the 1 st defendant was able to do the registration using his national identity card, KRA PIN and eCitizen log-in credentials. The plaintiff has added that he neither signed the documents used in registering the 3 rd defendant nor provided funded the registration.
The plaintiff averred that he fears that, the 1 st defendant may use the 3 rd defendant as a vehicle for securing multiple financial facilities and credit instruments from various banks and financial institutions using his properties which he acquired through the power of attorney as collaterals. He claims that he only became aware of what he calls fraudulent undertakings in April 2024 when he discovered that the 1 st defendant had charged several of his properties and those of his siblings to secure some facilities with Rafiki Microfinance Bank following which he instituted this court’s civil suit numbers E007 of 2024 and E006 of 2024 which have been closed after the 1 st defendant paid the loans. He has also filed Thika Chief Magistrate’s Court civil suits numbers E721 of 2024 and E723 of 2024 against the 1 st respondent following other undisclosed fraudulent loans.
The plaintiff has further averred that he got information that the 1 st defendant is holding herself out as an agent of the 3 rd defendant including but not limited to operating several bank accounts in the name of the 3 rd defendant under the guise of the plaintiff’s authority. He claims that he has made attempts through his advocates to resolve the issues by way of resignation and transferring his proprietary rights in the 3 rd defendant to the 1 st defendant in vain.
The 1 st defendant has sworn affidavit dated 30 th May 2025 in response to the application while the 2 nd defendant did not participate in the application. She avers that the plaintiff’s application and accompanying documents consist of falsehoods, non-disclosures, egregious misrepresentations and its an abuse of the court process which are calculated to escalate personal vendetta aimed at harassing her and disrupting her business structure.
She has added that the plaintiff and her entered into a venture where they co-founded the 3 rd defendant on 16 th February 2012 and to formalize the venture, they on 1 st March 2012 executed a detailed Partnership Deed which set out terms of their business relationship. She has exhibited the 3 rd defendant’s certificate of registration and the Deed. She added that the plaintiff was personally present and participated in opening of a bank account for the 3 rd defendant with Equity Bank on 1-03-2012 where he personally signed account opening forms and mandate card. The 1 st defendant has added that the plaintiff continued being active in the affairs of the business of the 3 rd defendant and to that effect, she has exhibited email correspondences between them dated 6 th and 7 th August 2012.
On the eCitizen credentials, the 1 st defendant avers that she was not the only one who accessed the portal and goes on to identify other users whose she names as one Hajila Kimeria and Michael Kimeria. She states further that the plaintiff has always been in possession and control of his eCitizen credentials and utilized the platform for various personal transactions.
On the Power of Attorney donated to her by the plaintiff dated 15 th January 2015, the 1 st defendant avers that it was an extension of their pre-existing relationship of mutual support and business facilitation as it was executed years after the 3 rd defendant was established and that this was reciprocal to her act of donating to the plaintiff a power of attorney therebefore. She states that the plaintiff in his own admission possesses multiple signature styles and his denial of the signatures on the 3 rd defendant’s documents was a tactic to avoid responsibility for actions and agreements he previously authorized or undertook.
The 1 st defendant has added that as a co-proprietor of the 3 rd defendant, she knows that it does not have any liabilities neither has she utilized it to obtain any loans or financial encumbrances that would expose the plaintiff to unknown liabilities and if any liability exists, the plaintiff is best placed to explain their origins and extent.
She also denied that she has frustrated the plaintiff’s attempts to resign from the 3 rd defendant and adds that the plaintiff just needs to execute the necessary resignation or transfer documents and forward them to her for uploading in the eCitizen portal which is a simple process he has failed to complete.
The 1 st defendant has termed the plaintiff as a vexatious litigant who has told falsehoods in this court’s suit number E006 of 2024 where he had denied their engagements only to later consent to transfer his shares in a company known as Dedsilva International Limited which they had jointly incorporated.
The 1 st defendant avers further that, the plaintiff has instituted several suits against her and other family members in order to inflict on her maximum legal and financial strain and to embroil other family members. She cites this court’s civil suit numbers E006 of 2024, E007 of 2024 and E008 of 2025 and Chief Magistrate’s civil suits numbers E723 of 2024 and E721 of 2024. She claims that the plaintiff is being used by third parties to destroy their family relationship. She goes on to give a detailed history of the beginning and progression of their bad blood where third parties have infiltrated their family and sought to isolate the plaintiff from other members of the family. I don’t wish to reproduce the rest of the details in this ruling safe to add that the 1 st defendant has committed in her replying affidavit to make deliberate efforts to seek reconciliation and resolution of their disputes away from the eyes of the court.
The 1 st defendant has also sought to raise objection to the jurisdiction of this court based on the fact that their partnership deed provided for settlement of disputes through mediation, negotiation and arbitration which have not been exhausted. She also adds that the 3 rd defendant was registered in Nairobi, its principal place of business is in Nairobi and the plaintiff operates in Nairobi and in the circumstances, filing of the suit in this court amounts to forum shopping.
On the aspect of leave to file derivative suit, the 1 st defendant states that the 3 rd defendant being a business name, the prayers is untenable and misconceived as such remedy is only available where limited liability companies are involved. She adds that by including the 3 rd defendant in the suit amounts to the plaintiff suing himself which is a procedural absurdity.
I have considered the application and the parties’ affidavits. I have also read and considered 1 st defendant’s submissions dated 11 th September 2025. The submission filed by the plaintiff are for civil suit number E008 of 2025 and I will not consider the same. I will however give the supporting affidavit of the plaintiff due consideration.
I will start with the issue of jurisdiction. It is true that the partnership deed exhibited by the 1 st defendant provided for resolution of disputes arising therefrom through mediation, negotiations and arbitration. It is also the true position in law that where there is an arbitration clause in an agreement, the court does not have jurisdiction to hear and determine disputes arising from the agreement.
In my opinion, the plaintiff’s case against the defendants does not emanate from the terms of the deed. The plaintiff claims not have even been part of the registration of the 3 rd defendant and this by extension would mean that there was no such agreement. The very valid existence of the business name is disputed and the defendant will have to prove that the partnership exists and only after that proof can the court be called upon to determine whether the dispute between the parties in this suit falls under those contemplated in the deed. I therefore decline to uphold that objection.
It is trite that principles governing consideration of an application of this nature are that the plaintiff is duty bound to demonstrate that he has a prima fascie case with a probability of success and that an award of damages will not be adequate to compensate him for the loss he would suffer if the application is not allowed. If the court is in doubt, it will decide the application on a balance of convenience. This position was restated in Njimu v Jaswant Singh & Brothers Ltd & 2 others [2023] KEHC 21578 (KLR) where the court held that;
‘The principles for grant of temporary injunction are well settled. These were set out in the case of Giella v Cassman Brown (1973) EA 358 as follows:
a) The Applicant must establish a prima facie case with a probability of success.
b) If the injunction is not granted, the Applicant will suffer irreparable injury that may not be compensated by an award of damages.
c) Where a court is in doubt, it should decide the application on a balance of convenience.’
It is also trite that the onus of proving that the application meets the threshold for an interlocutory injunction is on the applicant. In Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR), the court held that;
‘In an application for an interlocutory injunction the onus is on the applicant to satisfy the court that it should grant an injunction. An injunction, being a discretionary remedy is granted on the basis of evidence and sound legal principles.’
The plaintiff alleges that the 1 st defendant committed fraud against him by registering the 3 rd defendant using forged documents and information entrusted to her by the him. Part of the fraud was to include him as co-proprietor of the 3 rd defendant without his concurrence, consent or knowledge. He also alleges that the signatures on the documents used to register the 3 rd defendant were forged. If the plaintiff were to prove that these documents were forged, I would hold that there is a prima fascie case with a probability of success.
The position in law is that fraud being a serious allegation it must be specifically pleaded and proved. The Court of Appeal held in Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] KECA 232 (KLR) that;
‘ Given the seriousness of the allegations, the onus was on the appellants to provide evidence to the Court of the alleged fraud which evidence must meet the standard of proof as was underscored by this Court in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows:
“The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.”
Having gone through the evidence produced before me, I have formed opinion that the plaintiff has given general statements that the documents were forged without producing evidence to that effect. I am not in a position to know whether or not the documents were forged or who presented them to the 2 nd defendant for registration. Similarly, I do not know the plaintiff’s ordinary signature neither do I have capacity to establish the authenticity of the documents or the person who signed the documents. The 1 st defendant has averred that in her long period of interaction with the plaintiff, she has come to know that the plaintiff possesses different styles of signature. These are two competing positions and the plaintiff being the applicant, had the onus of proving that his position is more probable than the 1 st defendant’s, a duty I find he has failed to discharge
I have looked at the signature in the supporting affidavit and those on the notice of revocation of power of attorney (plaintiff’s annexure ‘PMM-7’), partnership deed (the 1 st defendant’s annexure ‘JWM-2), the account opening forms [the 1 st defendant’s annexure JWM-3(a)] and they look different to the ordinary eyes. However, I cannot rule out that the plaintiff may have had different styles of signing. In these circumstances, only a documents examiner would be in a position to tell whether the two sets of signatures were made by the same author.
Making false documents and registering a business name using them is a serious criminal offence which I don’t think the plaintiff would have lived with without reporting to the police or other competent law enforcement agencies. According to the plaintiff, he suspects that the 3 rd respondent may be used to access credit from institutions yet he has sat back without taking a deliberate and available action to avoid such an eventuality other than filing this case. Rushing to this court which has no capacity to investigate such technical issues does not bring out the plaintiff as truthful.
The plaintiff also claims that he has tried to resign from the 3 rd defendant but the 1 st defendant has frustrated his efforts. The plaintiff has again made a general allegation without giving facts or details. He has not told the court how such efforts have been frustrated. All that he has shown are letters from his advocates proposing that he could transfer his shares in different companies in exchange of release of some title deeds. I am convinced that, these proposals were done during negotiations which resulted to recording of a consent in this court’s civil suit number E006 of 2024.
The plaintiff is not right to accuse the 1 st defendant of unwillingness to resolve the issues while it is evident that civil suit number E006 of 2024 was determined through a consent. I agree with the 1 st defendant that the process of resigning from the 3 rd defendant just needs signing of necessary documents by the plaintiff. It cannot be done by exchange of correspondence as the plaintiff wants the court to believe. There is no evidence that the plaintiff executed any documents which the 1 st defendant failed to act on.
On the issue of the 1 st defendant holding herself out as an agent of the 3 rd defendant, there is in my view nothing wrong with the 1 st defendant doing that as she is co-proprietor of the entity. The power of attorney was signed in 2015 which is an indication that the two protagonists were in good terms. The emails exhibited by the 1 st defendant also attest to that fact. The 3 rd defendant was registered in 2012 which was followed by the partnership deed which the plaintiff has avoided to address.
On the basis of the above, I find that the plaintiff has not proved the allegations he has pleaded against the 1 st defendant and in my opinion, this suit is a culmination of strained relationship between the plaintiff and the 1 st defendant which seems to stem from some family disputes. I therefore hold that the plaintiff has failed to establish a prima fascie case with a probability of success against the defendants.
There is no necessity of me proceeding to consider the limbs of irreparable damages and balance of convenience because they will serve no meaningful purpose. It is the position of the law that where an applicant fails to establish a prima fascie case with a probability of success, the application must fail even where the other principles are provable. In Nguruman Limited v Nielsen & others (2014) KECA 606 (KLR), the Court of Appeal held as follows;
‘If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.’
The prayer for leave to file derivative suit is unmerited. Such leave is granted to a member of a company to bring suit on behalf of the company and does not apply in unincorporated entities like the 3 rd defendant. The Court of Appeal held in Juletabi Africa Adventure Limited & another v Christopher Michael Lockley [2017] KECA 118 (KLR), that;
‘We think we have said enough, on the basis of those decisions to demonstrate that a derivative suit is basically brought on behalf of a company for wrongs committed against it or in other words for the benefit of the company.’
The upshot of the above is that the application dated 9 th May 2025 lacks merits and the same is dismissed with costs to the defendants.
Dated signed and delivered at Nairobi this 30 th day of April 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Mr. Omondi holding brief for Miss Ikua for the plaintiff and Mr. Kairu Kihunyo for the 1 st defendant and in absence of the 2 nd and 3 rd defendants.
2 | Page
The notice of motion to which this ruling relates and affidavit in support thereof is same word for word as in E007 of 2025 and E008 of 2025. The only difference is the name and identity of the 3 rd defendants in all the suits. No matter how boring and tiresome reading the same arguments in three matters is, I am duty bound to handle each of the matters on their own merits and I will do that.
The notice of motion dated 9 th May 2025 in this matter prayed for the following orders;
a. Spent.
b. Spent.
c. Spent.
d. THAT leave be and do hereby issue for the applicant to institute a derivative suit as against the 3 rd respondent.
e. THAT this Honourable Court do issue orders compelling the 1 st respondent, to render a full account of all transactions, dealings, liabilities and benefits obtained by or through the 3 rd respondent through the applicant's credentials including bank statements, loan applications, disbursements and usage.
f. THAT this Honourable Court be pleased to issue orders restraining the 1 st respondent from acting as an agent of the 3 rd respondent and incurring and/or undertaking any liabilities on behalf of the 3 rd respondent pending the hearing and determination of the suit filed herewith.
g. THAT this Honourable Court be pleased to issue orders restraining the 2 nd respondent from registering any debentures over the 3 rd respondent's assets pending hearing and determination of the suit filed herewith.
h. THAT the Honourable Court be pleased to issue such further orders as it may deem just and expedient in the circumstances of this case.
i. THAT costs of this application be in the cause.
Just like in the other two applications in the suits mentioned above, this application’s eight grounds are in summary that; the plaintiff was included and registered as a director of the 3 rd defendant at the time of registration without his consent, the signatures appearing in the documents filed with the 2 nd defendant during incorporation of the 3 rd defendant were not plaintiff’s and are forgeries and the plaintiff fears that the 1 st defendant may use his properties to secure loans from banks and other financial institution using the 3 rd defendant without his knowledge or consent. Again, the plaintiff’s supporting affidavit dated 9 th May 2025 makes what I would call a carbon copy of the averments as in the other two suits the only difference being the name and the status of the 3 rd defendant who unlike in the other suits is not a limited liability company and some adjustments to suit that status. That notwithstanding, I will reproduce the same as hereinbelow.
The plaintiff depones that sometime in 2015 out of desire to invest in moveable and immovable properties in Kenya, he executed a power of attorney in favour of the 1 st defendant with a purpose of her identifying, negotiating and purchasing real property in Kenya on his behalf. The 1 st defendant abused this relationship by registering the 3 rd defendant with him as proprietor without his knowledge or consent. The plaintiff alleges that the 1 st defendant was able to do the registration using his national identity card, KRA PIN and eCitizen log-in credentials. The plaintiff has added that he neither signed the documents used in registering the 3 rd defendant nor provided funded the registration.
The plaintiff averred that he fears that, the 1 st defendant may use the 3 rd defendant as a vehicle for securing multiple financial facilities and credit instruments from various banks and financial institutions using his properties which he acquired through the power of attorney as collaterals. He claims that he only became aware of what he calls fraudulent undertakings in April 2024 when he discovered that the 1 st defendant had charged several of his properties and those of his siblings to secure some facilities with Rafiki Microfinance Bank following which he instituted this court’s civil suit numbers E007 of 2024 and E006 of 2024 which have been closed after the 1 st defendant paid the loans. He has also filed Thika Chief Magistrate’s Court civil suits numbers E721 of 2024 and E723 of 2024 against the 1 st respondent following other undisclosed fraudulent loans.
The plaintiff has further averred that he got information that the 1 st defendant is holding herself out as an agent of the 3 rd defendant including but not limited to operating several bank accounts in the name of the 3 rd defendant under the guise of the plaintiff’s authority. He claims that he has made attempts through his advocates to resolve the issues by way of resignation and transferring his proprietary rights in the 3 rd defendant to the 1 st defendant in vain.
The 1 st defendant has sworn affidavit dated 30 th May 2025 in response to the application while the 2 nd defendant did not participate in the application. She avers that the plaintiff’s application and accompanying documents consist of falsehoods, non-disclosures, egregious misrepresentations and its an abuse of the court process which are calculated to escalate personal vendetta aimed at harassing her and disrupting her business structure.
She has added that the plaintiff and her entered into a venture where they co-founded the 3 rd defendant on 16 th February 2012 and to formalize the venture, they on 1 st March 2012 executed a detailed Partnership Deed which set out terms of their business relationship. She has exhibited the 3 rd defendant’s certificate of registration and the Deed. She added that the plaintiff was personally present and participated in opening of a bank account for the 3 rd defendant with Equity Bank on 1-03-2012 where he personally signed account opening forms and mandate card. The 1 st defendant has added that the plaintiff continued being active in the affairs of the business of the 3 rd defendant and to that effect, she has exhibited email correspondences between them dated 6 th and 7 th August 2012.
On the eCitizen credentials, the 1 st defendant avers that she was not the only one who accessed the portal and goes on to identify other users whose she names as one Hajila Kimeria and Michael Kimeria. She states further that the plaintiff has always been in possession and control of his eCitizen credentials and utilized the platform for various personal transactions.
On the Power of Attorney donated to her by the plaintiff dated 15 th January 2015, the 1 st defendant avers that it was an extension of their pre-existing relationship of mutual support and business facilitation as it was executed years after the 3 rd defendant was established and that this was reciprocal to her act of donating to the plaintiff a power of attorney therebefore. She states that the plaintiff in his own admission possesses multiple signature styles and his denial of the signatures on the 3 rd defendant’s documents was a tactic to avoid responsibility for actions and agreements he previously authorized or undertook.
The 1 st defendant has added that as a co-proprietor of the 3 rd defendant, she knows that it does not have any liabilities neither has she utilized it to obtain any loans or financial encumbrances that would expose the plaintiff to unknown liabilities and if any liability exists, the plaintiff is best placed to explain their origins and extent.
She also denied that she has frustrated the plaintiff’s attempts to resign from the 3 rd defendant and adds that the plaintiff just needs to execute the necessary resignation or transfer documents and forward them to her for uploading in the eCitizen portal which is a simple process he has failed to complete.
The 1 st defendant has termed the plaintiff as a vexatious litigant who has told falsehoods in this court’s suit number E006 of 2024 where he had denied their engagements only to later consent to transfer his shares in a company known as Dedsilva International Limited which they had jointly incorporated.
The 1 st defendant avers further that, the plaintiff has instituted several suits against her and other family members in order to inflict on her maximum legal and financial strain and to embroil other family members. She cites this court’s civil suit numbers E006 of 2024, E007 of 2024 and E008 of 2025 and Chief Magistrate’s civil suits numbers E723 of 2024 and E721 of 2024. She claims that the plaintiff is being used by third parties to destroy their family relationship. She goes on to give a detailed history of the beginning and progression of their bad blood where third parties have infiltrated their family and sought to isolate the plaintiff from other members of the family. I don’t wish to reproduce the rest of the details in this ruling safe to add that the 1 st defendant has committed in her replying affidavit to make deliberate efforts to seek reconciliation and resolution of their disputes away from the eyes of the court.
The 1 st defendant has also sought to raise objection to the jurisdiction of this court based on the fact that their partnership deed provided for settlement of disputes through mediation, negotiation and arbitration which have not been exhausted. She also adds that the 3 rd defendant was registered in Nairobi, its principal place of business is in Nairobi and the plaintiff operates in Nairobi and in the circumstances, filing of the suit in this court amounts to forum shopping.
On the aspect of leave to file derivative suit, the 1 st defendant states that the 3 rd defendant being a business name, the prayers is untenable and misconceived as such remedy is only available where limited liability companies are involved. She adds that by including the 3 rd defendant in the suit amounts to the plaintiff suing himself which is a procedural absurdity.
I have considered the application and the parties’ affidavits. I have also read and considered 1 st defendant’s submissions dated 11 th September 2025. The submission filed by the plaintiff are for civil suit number E008 of 2025 and I will not consider the same. I will however give the supporting affidavit of the plaintiff due consideration.
I will start with the issue of jurisdiction. It is true that the partnership deed exhibited by the 1 st defendant provided for resolution of disputes arising therefrom through mediation, negotiations and arbitration. It is also the true position in law that where there is an arbitration clause in an agreement, the court does not have jurisdiction to hear and determine disputes arising from the agreement.
In my opinion, the plaintiff’s case against the defendants does not emanate from the terms of the deed. The plaintiff claims not have even been part of the registration of the 3 rd defendant and this by extension would mean that there was no such agreement. The very valid existence of the business name is disputed and the defendant will have to prove that the partnership exists and only after that proof can the court be called upon to determine whether the dispute between the parties in this suit falls under those contemplated in the deed. I therefore decline to uphold that objection.
It is trite that principles governing consideration of an application of this nature are that the plaintiff is duty bound to demonstrate that he has a prima fascie case with a probability of success and that an award of damages will not be adequate to compensate him for the loss he would suffer if the application is not allowed. If the court is in doubt, it will decide the application on a balance of convenience. This position was restated in Njimu v Jaswant Singh & Brothers Ltd & 2 others [2023] KEHC 21578 (KLR) where the court held that;
‘The principles for grant of temporary injunction are well settled. These were set out in the case of Giella v Cassman Brown (1973) EA 358 as follows:
a) The Applicant must establish a prima facie case with a probability of success.
b) If the injunction is not granted, the Applicant will suffer irreparable injury that may not be compensated by an award of damages.
c) Where a court is in doubt, it should decide the application on a balance of convenience.’
It is also trite that the onus of proving that the application meets the threshold for an interlocutory injunction is on the applicant. In Paul Gitonga Wanjau v Gathuthi Tea Factory Company Ltd & 2 others [2016] KEHC 7263 (KLR), the court held that;
‘In an application for an interlocutory injunction the onus is on the applicant to satisfy the court that it should grant an injunction. An injunction, being a discretionary remedy is granted on the basis of evidence and sound legal principles.’
The plaintiff alleges that the 1 st defendant committed fraud against him by registering the 3 rd defendant using forged documents and information entrusted to her by the him. Part of the fraud was to include him as co-proprietor of the 3 rd defendant without his concurrence, consent or knowledge. He also alleges that the signatures on the documents used to register the 3 rd defendant were forged. If the plaintiff were to prove that these documents were forged, I would hold that there is a prima fascie case with a probability of success.
The position in law is that fraud being a serious allegation it must be specifically pleaded and proved. The Court of Appeal held in Moses Parantai & Peris Wanjiku Mukuru suing as the legal representatives of the estate of Sospeter Mukuru Mbeere (deceased) v Stephen Njoroge Macharia [2020] KECA 232 (KLR) that;
‘ Given the seriousness of the allegations, the onus was on the appellants to provide evidence to the Court of the alleged fraud which evidence must meet the standard of proof as was underscored by this Court in Central Bank of Kenya Limited v Trust Bank Limited & 4 Others [1996] eKLR as being beyond that of a balance of probabilities but not beyond reasonable doubt. In that case, the Court rendered itself as follows:
“The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case.”
Having gone through the evidence produced before me, I have formed opinion that the plaintiff has given general statements that the documents were forged without producing evidence to that effect. I am not in a position to know whether or not the documents were forged or who presented them to the 2 nd defendant for registration. Similarly, I do not know the plaintiff’s ordinary signature neither do I have capacity to establish the authenticity of the documents or the person who signed the documents. The 1 st defendant has averred that in her long period of interaction with the plaintiff, she has come to know that the plaintiff possesses different styles of signature. These are two competing positions and the plaintiff being the applicant, had the onus of proving that his position is more probable than the 1 st defendant’s, a duty I find he has failed to discharge
I have looked at the signature in the supporting affidavit and those on the notice of revocation of power of attorney (plaintiff’s annexure ‘PMM-7’), partnership deed (the 1 st defendant’s annexure ‘JWM-2), the account opening forms [the 1 st defendant’s annexure JWM-3(a)] and they look different to the ordinary eyes. However, I cannot rule out that the plaintiff may have had different styles of signing. In these circumstances, only a documents examiner would be in a position to tell whether the two sets of signatures were made by the same author.
Making false documents and registering a business name using them is a serious criminal offence which I don’t think the plaintiff would have lived with without reporting to the police or other competent law enforcement agencies. According to the plaintiff, he suspects that the 3 rd respondent may be used to access credit from institutions yet he has sat back without taking a deliberate and available action to avoid such an eventuality other than filing this case. Rushing to this court which has no capacity to investigate such technical issues does not bring out the plaintiff as truthful.
The plaintiff also claims that he has tried to resign from the 3 rd defendant but the 1 st defendant has frustrated his efforts. The plaintiff has again made a general allegation without giving facts or details. He has not told the court how such efforts have been frustrated. All that he has shown are letters from his advocates proposing that he could transfer his shares in different companies in exchange of release of some title deeds. I am convinced that, these proposals were done during negotiations which resulted to recording of a consent in this court’s civil suit number E006 of 2024.
The plaintiff is not right to accuse the 1 st defendant of unwillingness to resolve the issues while it is evident that civil suit number E006 of 2024 was determined through a consent. I agree with the 1 st defendant that the process of resigning from the 3 rd defendant just needs signing of necessary documents by the plaintiff. It cannot be done by exchange of correspondence as the plaintiff wants the court to believe. There is no evidence that the plaintiff executed any documents which the 1 st defendant failed to act on.
On the issue of the 1 st defendant holding herself out as an agent of the 3 rd defendant, there is in my view nothing wrong with the 1 st defendant doing that as she is co-proprietor of the entity. The power of attorney was signed in 2015 which is an indication that the two protagonists were in good terms. The emails exhibited by the 1 st defendant also attest to that fact. The 3 rd defendant was registered in 2012 which was followed by the partnership deed which the plaintiff has avoided to address.
On the basis of the above, I find that the plaintiff has not proved the allegations he has pleaded against the 1 st defendant and in my opinion, this suit is a culmination of strained relationship between the plaintiff and the 1 st defendant which seems to stem from some family disputes. I therefore hold that the plaintiff has failed to establish a prima fascie case with a probability of success against the defendants.
There is no necessity of me proceeding to consider the limbs of irreparable damages and balance of convenience because they will serve no meaningful purpose. It is the position of the law that where an applicant fails to establish a prima fascie case with a probability of success, the application must fail even where the other principles are provable. In Nguruman Limited v Nielsen & others (2014) KECA 606 (KLR), the Court of Appeal held as follows;
‘If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.’
The prayer for leave to file derivative suit is unmerited. Such leave is granted to a member of a company to bring suit on behalf of the company and does not apply in unincorporated entities like the 3 rd defendant. The Court of Appeal held in Juletabi Africa Adventure Limited & another v Christopher Michael Lockley [2017] KECA 118 (KLR), that;
‘We think we have said enough, on the basis of those decisions to demonstrate that a derivative suit is basically brought on behalf of a company for wrongs committed against it or in other words for the benefit of the company.’
The upshot of the above is that the application dated 9 th May 2025 lacks merits and the same is dismissed with costs to the defendants.
Dated signed and delivered at Nairobi this 30 th day of April 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Ruling delivered in presence of Mr. Omondi holding brief for Miss Ikua for the plaintiff and Mr. Kairu Kihunyo for the 1 st defendant and in absence of the 2 nd and 3 rd defendants.
2 | Page