The four applicants herein instituted this action by filing a Notice of Motion dated 23rd October 2025. In the Motion, the applicants sought the following orders:
i) Spent;
ii) That this Honourable court be pleased to issue an order allowing the plaintiffs/applicants and other shareholders of the 1st respondent to convene and hold a Special General Meeting at Makomboki school grounds on 8th November 2025;
iii) That this Honourable court do issue a mandatory injunction restraining the 2nd respondents from obstructing, interfering with or in any manner frustrating the convening and holding of the said Special General Meeting that will be held on 8th November 2025;
iv) That this court do issue a declaration that the refusal, neglect, and/or failure by the 2nd respondents to convene the said meeting upon a valid requisition by the shareholders is unlawful, contrary to sections 277 and 278 of the Companies Act 2015 and constitutes a breach of statutory duty;
v) That the Officer Commanding Station (OCS), Kangari Police Station be directed to provide security and maintain peace during the aforesaid meeting to be held on 8th November 2025 to ensure an orderly and peaceful process;
vi) That the costs of the application be provided for.
2. The application is anchored on the grounds stated on its face and the depositions made in the supporting affidavit sworn on 23rd October 2025 by the 4th applicant, Mr. Anthony Mwaniki Nganga.
Briefly, the applicants aver that they are bona fide members of the 1st respondent, Makomboki Tea Factory Limited (the Company); that by a letter dated 2nd October 2025, together with other shareholders, they formally requested the 2nd respondents to convene a Special General Meeting (hereinafter SGM) in accordance with Section 277 and Section 278 of the Companies Act 2015 for purposes of deliberating on urgent matters affecting the management and operations of the company.
3. The applicants assert that there were serious allegations of fraud, financial mismanagement and irregular operations in the company which, if left unchecked, would continue to occasion irreparable loss to shareholders and farmers hence the need for the
SGM.
4. It is the applicants case that despite service of the letter requisitioning the SGM, the 2nd respondents had ignored, neglected, or refused to convene the SGM as required by Section 277 of the Companies Act which refusal had denied the 1st respondent’s shareholders their statutory right to deliberate on and pass resolutions for proper governance of the company; that unless this Court intervened by granting the orders sought, the applicants and other shareholders will continue to suffer irreparable financial and reputational loss arising from the continued mismanagement of the 1st respondent.
5. The application was opposed by the respondents through grounds of opposition dated 4th November 2025 and a replying affidavit sworn on even date by Mr. Bernard Kiragu Kamau, the 1st respondent’s Company Secretary.
6. The grounds of opposition were replicated in the averments made by Mr. Kiragu in the replying affidavit. In a nutshell, the respondents challenged the legal validity of the requisition for the SGM dated 2nd October 2025. They asserted that the requisition was not served on them as required by the law and it contained matters which were defamatory including allegations of fraud and money laundering contrary to the provisions of Section 277 (6) of the Companies Act . According to the respondents, the requisition also contained shareholders private information in violation of the Data Protection Act.
7. Further, the respondents challenged the competence of the Notice of Motion contending that it sought final orders whereas an application was not a means of commencing a cause of action in law. In paragraph 18 of the replying affidavit, the deponent averred that the application raised fundamental issues which would require the taking of evidence and cross-examination of witnesses to enable the court arrive at a just determination.
8. On 5th November 2025 and with the consent of the parties, the court directed that the application be canvassed by way of written submissions. The applicants submissions dated 1st December 2025 were filed by M/s Kiragu Kimori & Associates while those of the respondents dated 15th January 2026 were filed by M/s Kimani & Muriithi Associates.
9. I have carefully considered the application, the affidavits on record and the parties rival written submissions. Having done so, I find that
the applicants main prayer in the motion is an order allowing them and other shareholders of the 1st respondent to convene a Special General Meeting on 8th November 2025. The other prayers were dependent on the success of the aforesaid prayer since they were meant to facilitate peace and security during the proposed meeting.
10. Given the foregoing, I am persuaded to agree with the respondents’ submissions that the orders sought in the motion were not available to the applicants since they had already been overtaken by events. I say so because the intended SGM was scheduled to take place on 8th October 2025 which date had already passed given that we are now in the month of April 2026. In my view, granting the orders sought would be an exercise in futility as it would not serve any useful purpose. It would only offend the well settled legal principle that courts of law should not issue orders in vain.
11. Although the applicants have in their submissions requested the court to authorise holding of the proposed SGM on any other date it may direct, this prayer is in my opinion legally untenable as it is not based on any pleading before the court. Submissions are supposed to encompass a party’s arguments in support of its case based on its pleadings and the evidence availed before the court. Submissions cannot be used to introduce prayers which were not included in the parties pleadings or application as doing so would obviously prejudice the opposite party.
12. Having found as I have above, I do not find it necessary to delve into the substantive issues raised by the respondents regarding the validity or otherwise of the aforesaid requisition and the competence of the application. Suffice it to say that I am in agreement with the respondent’s submissions that the application is incompetent and fatally defective as it sought to institute a civil action in a manner that was not prescribed by the law.
13. Section 19 of the Civil Procedure Act as read with Order 3 Rule 1 of the Civil Procedure Rules leaves no doubt that civil suits can only be instituted by way of a plaint or any other pleading. Section 2 of the Act defines a pleading to include;
“ …. a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant.”
Drawing from the above, I have no doubt in my mind that a Notice of Motion is not a pleading and is thus not one of the procedures prescribed by the law for institution of a suit- See: Board of Governors, Nairobi School V Jackson Ireri Geta ( 1999) KLR; Fidelity Bank Limited V John Joel Kanyali [2014] KEHC 5860 (KLR);
14. For all the foregoing reasons, I am satisfied that besides the fact that the Notice of Motion dated 23rd October 2025 is already spent, the same is also incompetent and fatally defective and cannot be sustained. Consequently, the application is hereby struck out with costs to the respondents.
It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 23rd day of April 2026 .
i) Spent;
ii) That this Honourable court be pleased to issue an order allowing the plaintiffs/applicants and other shareholders of the 1st respondent to convene and hold a Special General Meeting at Makomboki school grounds on 8th November 2025;
iii) That this Honourable court do issue a mandatory injunction restraining the 2nd respondents from obstructing, interfering with or in any manner frustrating the convening and holding of the said Special General Meeting that will be held on 8th November 2025;
iv) That this court do issue a declaration that the refusal, neglect, and/or failure by the 2nd respondents to convene the said meeting upon a valid requisition by the shareholders is unlawful, contrary to sections 277 and 278 of the Companies Act 2015 and constitutes a breach of statutory duty;
v) That the Officer Commanding Station (OCS), Kangari Police Station be directed to provide security and maintain peace during the aforesaid meeting to be held on 8th November 2025 to ensure an orderly and peaceful process;
vi) That the costs of the application be provided for.
2. The application is anchored on the grounds stated on its face and the depositions made in the supporting affidavit sworn on 23rd October 2025 by the 4th applicant, Mr. Anthony Mwaniki Nganga.
Briefly, the applicants aver that they are bona fide members of the 1st respondent, Makomboki Tea Factory Limited (the Company); that by a letter dated 2nd October 2025, together with other shareholders, they formally requested the 2nd respondents to convene a Special General Meeting (hereinafter SGM) in accordance with Section 277 and Section 278 of the Companies Act 2015 for purposes of deliberating on urgent matters affecting the management and operations of the company.
3. The applicants assert that there were serious allegations of fraud, financial mismanagement and irregular operations in the company which, if left unchecked, would continue to occasion irreparable loss to shareholders and farmers hence the need for the
SGM.
4. It is the applicants case that despite service of the letter requisitioning the SGM, the 2nd respondents had ignored, neglected, or refused to convene the SGM as required by Section 277 of the Companies Act which refusal had denied the 1st respondent’s shareholders their statutory right to deliberate on and pass resolutions for proper governance of the company; that unless this Court intervened by granting the orders sought, the applicants and other shareholders will continue to suffer irreparable financial and reputational loss arising from the continued mismanagement of the 1st respondent.
5. The application was opposed by the respondents through grounds of opposition dated 4th November 2025 and a replying affidavit sworn on even date by Mr. Bernard Kiragu Kamau, the 1st respondent’s Company Secretary.
6. The grounds of opposition were replicated in the averments made by Mr. Kiragu in the replying affidavit. In a nutshell, the respondents challenged the legal validity of the requisition for the SGM dated 2nd October 2025. They asserted that the requisition was not served on them as required by the law and it contained matters which were defamatory including allegations of fraud and money laundering contrary to the provisions of Section 277 (6) of the Companies Act . According to the respondents, the requisition also contained shareholders private information in violation of the Data Protection Act.
7. Further, the respondents challenged the competence of the Notice of Motion contending that it sought final orders whereas an application was not a means of commencing a cause of action in law. In paragraph 18 of the replying affidavit, the deponent averred that the application raised fundamental issues which would require the taking of evidence and cross-examination of witnesses to enable the court arrive at a just determination.
8. On 5th November 2025 and with the consent of the parties, the court directed that the application be canvassed by way of written submissions. The applicants submissions dated 1st December 2025 were filed by M/s Kiragu Kimori & Associates while those of the respondents dated 15th January 2026 were filed by M/s Kimani & Muriithi Associates.
9. I have carefully considered the application, the affidavits on record and the parties rival written submissions. Having done so, I find that
the applicants main prayer in the motion is an order allowing them and other shareholders of the 1st respondent to convene a Special General Meeting on 8th November 2025. The other prayers were dependent on the success of the aforesaid prayer since they were meant to facilitate peace and security during the proposed meeting.
10. Given the foregoing, I am persuaded to agree with the respondents’ submissions that the orders sought in the motion were not available to the applicants since they had already been overtaken by events. I say so because the intended SGM was scheduled to take place on 8th October 2025 which date had already passed given that we are now in the month of April 2026. In my view, granting the orders sought would be an exercise in futility as it would not serve any useful purpose. It would only offend the well settled legal principle that courts of law should not issue orders in vain.
11. Although the applicants have in their submissions requested the court to authorise holding of the proposed SGM on any other date it may direct, this prayer is in my opinion legally untenable as it is not based on any pleading before the court. Submissions are supposed to encompass a party’s arguments in support of its case based on its pleadings and the evidence availed before the court. Submissions cannot be used to introduce prayers which were not included in the parties pleadings or application as doing so would obviously prejudice the opposite party.
12. Having found as I have above, I do not find it necessary to delve into the substantive issues raised by the respondents regarding the validity or otherwise of the aforesaid requisition and the competence of the application. Suffice it to say that I am in agreement with the respondent’s submissions that the application is incompetent and fatally defective as it sought to institute a civil action in a manner that was not prescribed by the law.
13. Section 19 of the Civil Procedure Act as read with Order 3 Rule 1 of the Civil Procedure Rules leaves no doubt that civil suits can only be instituted by way of a plaint or any other pleading. Section 2 of the Act defines a pleading to include;
“ …. a petition or summons, and the statements in writing of the claim or demand of any plaintiff, and of the defence of any defendant thereto, and of the reply of the plaintiff to any defence or counterclaim of a defendant.”
Drawing from the above, I have no doubt in my mind that a Notice of Motion is not a pleading and is thus not one of the procedures prescribed by the law for institution of a suit- See: Board of Governors, Nairobi School V Jackson Ireri Geta ( 1999) KLR; Fidelity Bank Limited V John Joel Kanyali [2014] KEHC 5860 (KLR);
14. For all the foregoing reasons, I am satisfied that besides the fact that the Notice of Motion dated 23rd October 2025 is already spent, the same is also incompetent and fatally defective and cannot be sustained. Consequently, the application is hereby struck out with costs to the respondents.
It is so ordered.
DATED, SIGNED and DELIVERED VIRTUALLY this 23rd day of April 2026 .