Background and introduction
1. The 1st applicant and the respondent are estranged spouses and co-directors in the 2nd respondent (the company). By way of a Notice of Motion application dated 20th January 2025, the applicants seek a series of reliefs. Specifically, they pray that the respondent be restrained from withdrawing funds from the company’s bank accounts without a resolution jointly signed by both directors, and from transferring, charging, or otherwise dealing with the company’s assets. They further seek orders compelling the respondent to grant the 1st applicant access to the company’s client database, the release of passwords, and to ensure that the National Transport and Safety Authority registers a caveat against the company’s motor vehicles pending determination of the suit.
2. Additionally, the applicants seek injunctive relief restraining the respondent and his agents, from interfering with the company’s business operations, withdrawing funds, or disposing of its assets. The applicants also seek the temporary suspension of the respondent from acting as director of the company, and ultimately his removal as director upon final determination of the suit. Finally, the applicants pray for an interim injunction restraining the respondent from publishing, commenting on, or broadcasting information relating to the separation proceedings between the parties on any platform, including social, electronic, or print media, pending the hearing and determination of the application.
3. The application is opposed through the respondent’s Replying Affidavit sworn on 18th August 2025. The respondent acknowledged that he was the Chief Executive Officer of the 2nd applicant while the 1st applicant was its Managing Director, and that both directors enjoy equal remuneration in terms of salaries, bonuses, dividends, and weekly disbursements. He denied any complicity or intentional breach of fiduciary duties as alleged.
4. He explained that Adequate Safaris Limited was incorporated in July 2024 under the sole directorship of his daughter, Maureen Wambui Kabu. He asserts that the idea of establishing a separate tour company for his daughter was initially proposed by the 1st applicant, and that she even suggested the name, encouraged the use of his reputation, and offered to release office space, staff, and client contacts to support the new venture. He maintains that Adequate Safaris Limited is wholly owned by his daughter and that he has not diverted any resources from the 2nd applicant to it.
5. The respondent further denied that Adequate Safaris Limited had passed itself off as a sister company to the 2nd applicant, insisting it had its own distinct market presence and strategy. He disputed the existence of a centralized client database, explaining that the 2nd applicant’s client information was held in company laptops, phones, and email accounts managed by staff, which are surrendered upon separation. He argues that neither director controls such information, and therefore he cannot withhold it from the 1st applicant.
6. On financial operations, he clarified that diaspora clients remit payments through M-Pesa lines registered in his name and that of the 1st applicant. He stated that all funds received were promptly transferred to the company’s paybill or bank accounts, where both directors were joint signatories, making unilateral withdrawals impossible. He denied any diversion of funds and emphasized that no particulars of misappropriation had been shown.
7. The respondent also denied allegations of poaching staff or transferring company vehicles, noting that staff departures were beyond his control. He maintained that it was the 1st applicant who had formed a competing entity, Virtuous Explorers Club, under the Virtuous Women Foundation, and that she had recruited staff from the 2nd applicant into her new venture. He denied engaging in malicious attacks against the 1st applicant and maintained that his actions have been consistent with his duties as director.
Analysis and Determination
8. Order 40 Rule 1 of the Civil Procedure Rules 2010 sets out the circumstances under which a temporary injunction can be granted by the Court. The conditions that guide the Court in granting such orders are also well crystalized from the decision in Giella vs. Cassman Brown & Co. Ltd (1973) E.A 385, at page 360 where Spry J. The principles are that: -
i. A party must show that they have a prima facie case with a probability of success;
ii. That they might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages if the order is not granted and;
iii. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
9. On the first condition, this court is called upon to ascertain whether the applicants have shown a prima facie case following the threshold laid out in Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. The Court defined a prima facie case as: -
"...a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter...a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant's case upon trial. That is clearly a standard which is higher than an arguable case."
10. In determining whether a prima facie case has been demonstrated, I am in turn cognizant of the limitations of enquiry that are permitted of this court at this point in time. The Court of Appeal in Nguruman Ltd v Jan Bonde Nielsen 8 2 Others, [2014] eKLR observed that: -
“In considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation.”
11. Turning to the matter before me, the applicants accused the respondent of engaging in and advancing the interests of a competing business, Adequate Safaris Limited, and of misrepresenting that entity as a “brother company” to the 2nd applicant. However, the applicants did not place before this Court any evidence demonstrating that the respondent was a director, shareholder, or otherwise involved in the management of Adequate Safaris Limited. The CR12 produced shows that the sole director and shareholder of the alleged rival company was one Maureen Wambui Kabu. In the absence of proof to the contrary, this Court cannot presume the respondent’s involvement in the said company.
12. Equally, the applicants failed to substantiate the allegation that the respondent had made representations linking Adequate Safaris Limited to the 2nd applicant. The excerpt of a WhatsApp message marked “SNN2” bore no evidence of the originating or recipient telephone number, nor did it contain any direct mention of the respondent. Without such authentication, the Court cannot rely on the said communication.
13. The allegation that the respondent withheld the client digital database, diverted updates, or cajoled the 2nd applicant’s clients into paying monies directly to him were also unsubstantiated. The correspondence produced by the respondent from the 2nd applicant’s various Branch Managers demonstrates that funds received from both local and international clients were processed through telephone numbers not exclusively registered in the respondent’s name, and were ultimately deposited into the 2nd applicant’s paybill or bank accounts. The applicants did not deny the respondent’s averment that both directors were joint signatories to the company’s bank accounts, making the alleged unilateral withdrawals impossible.
14. The applicants also relied on an Internal Memo dated 18th December 2024, written by the 1st applicant and addressed to employees of the 2nd applicant, raising concerns about the state of the company. That memo, however, was not supported by any corroborating evidence and therefore cannot, standing alone, sustain the allegations made.
15. Further, the allegation that the respondent transferred motor vehicles registered in the name of the 2nd applicant to Adequate Safaris Limited or other third parties was not supported by any documentary evidence of ownership or transfer.
16. It is a cardinal principle of law that he who alleges must prove. The burden lay squarely upon the applicants to demonstrate their claims to the required standard of proof in civil proceedings, namely, on a balance of probabilities. Mere assertions, unsupported by credible evidence, cannot suffice. In the present case, the applicants did not discharge this burden. The allegations are largely speculative and unsubstantiated, and this Court cannot grant relief on the basis of conjecture or suspicion.
17. The totality of the foregoing is that I am not persuaded that the applicants have established a prima facie case for granting of injunctive reliefs. Following the guidance in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB Civil Appeal no 77 of 2012 [2014] eKLR, the Court of Appeal emphasized that where a plaintiff fails to satisfy the first condition of demonstrating a prima facie case, the inquiry into whether damages would be an adequate remedy or where the balance of convenience lies does not arise. Applying that principle, it is my finding that the applicants have not met the threshold for injunctive relief, and their application must therefore fail.
18. Even though, for the sake of finality, I was to consider the other two grounds for injunctive relief, the applicants have not demonstrated that they stand to suffer irreparable harm, nor have they provided material to persuade this Court that damages would be insufficient compensation in the event their claim ultimately succeeds. Consequently, the balance of convenience lies in declining the injunction. To restrain the respondent in the absence of proof of wrongdoing or irreparable harm would amount to unjustly fettering the operations of the 2nd applicant company.
Disposition
19. The application dated 20th January 2025 is therefore dismissed. In order not to exacerbate the already strained relationship between the parties, I make no orders as to costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19th DAY OF MAY 2026.
F. MUGAMBI
JUDGE
1. The 1st applicant and the respondent are estranged spouses and co-directors in the 2nd respondent (the company). By way of a Notice of Motion application dated 20th January 2025, the applicants seek a series of reliefs. Specifically, they pray that the respondent be restrained from withdrawing funds from the company’s bank accounts without a resolution jointly signed by both directors, and from transferring, charging, or otherwise dealing with the company’s assets. They further seek orders compelling the respondent to grant the 1st applicant access to the company’s client database, the release of passwords, and to ensure that the National Transport and Safety Authority registers a caveat against the company’s motor vehicles pending determination of the suit.
2. Additionally, the applicants seek injunctive relief restraining the respondent and his agents, from interfering with the company’s business operations, withdrawing funds, or disposing of its assets. The applicants also seek the temporary suspension of the respondent from acting as director of the company, and ultimately his removal as director upon final determination of the suit. Finally, the applicants pray for an interim injunction restraining the respondent from publishing, commenting on, or broadcasting information relating to the separation proceedings between the parties on any platform, including social, electronic, or print media, pending the hearing and determination of the application.
3. The application is opposed through the respondent’s Replying Affidavit sworn on 18th August 2025. The respondent acknowledged that he was the Chief Executive Officer of the 2nd applicant while the 1st applicant was its Managing Director, and that both directors enjoy equal remuneration in terms of salaries, bonuses, dividends, and weekly disbursements. He denied any complicity or intentional breach of fiduciary duties as alleged.
4. He explained that Adequate Safaris Limited was incorporated in July 2024 under the sole directorship of his daughter, Maureen Wambui Kabu. He asserts that the idea of establishing a separate tour company for his daughter was initially proposed by the 1st applicant, and that she even suggested the name, encouraged the use of his reputation, and offered to release office space, staff, and client contacts to support the new venture. He maintains that Adequate Safaris Limited is wholly owned by his daughter and that he has not diverted any resources from the 2nd applicant to it.
5. The respondent further denied that Adequate Safaris Limited had passed itself off as a sister company to the 2nd applicant, insisting it had its own distinct market presence and strategy. He disputed the existence of a centralized client database, explaining that the 2nd applicant’s client information was held in company laptops, phones, and email accounts managed by staff, which are surrendered upon separation. He argues that neither director controls such information, and therefore he cannot withhold it from the 1st applicant.
6. On financial operations, he clarified that diaspora clients remit payments through M-Pesa lines registered in his name and that of the 1st applicant. He stated that all funds received were promptly transferred to the company’s paybill or bank accounts, where both directors were joint signatories, making unilateral withdrawals impossible. He denied any diversion of funds and emphasized that no particulars of misappropriation had been shown.
7. The respondent also denied allegations of poaching staff or transferring company vehicles, noting that staff departures were beyond his control. He maintained that it was the 1st applicant who had formed a competing entity, Virtuous Explorers Club, under the Virtuous Women Foundation, and that she had recruited staff from the 2nd applicant into her new venture. He denied engaging in malicious attacks against the 1st applicant and maintained that his actions have been consistent with his duties as director.
Analysis and Determination
8. Order 40 Rule 1 of the Civil Procedure Rules 2010 sets out the circumstances under which a temporary injunction can be granted by the Court. The conditions that guide the Court in granting such orders are also well crystalized from the decision in Giella vs. Cassman Brown & Co. Ltd (1973) E.A 385, at page 360 where Spry J. The principles are that: -
i. A party must show that they have a prima facie case with a probability of success;
ii. That they might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages if the order is not granted and;
iii. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.
9. On the first condition, this court is called upon to ascertain whether the applicants have shown a prima facie case following the threshold laid out in Mrao Ltd vs. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. The Court defined a prima facie case as: -
"...a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter...a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant's case upon trial. That is clearly a standard which is higher than an arguable case."
10. In determining whether a prima facie case has been demonstrated, I am in turn cognizant of the limitations of enquiry that are permitted of this court at this point in time. The Court of Appeal in Nguruman Ltd v Jan Bonde Nielsen 8 2 Others, [2014] eKLR observed that: -
“In considering whether or not a prima facie case has been established, the Court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation.”
11. Turning to the matter before me, the applicants accused the respondent of engaging in and advancing the interests of a competing business, Adequate Safaris Limited, and of misrepresenting that entity as a “brother company” to the 2nd applicant. However, the applicants did not place before this Court any evidence demonstrating that the respondent was a director, shareholder, or otherwise involved in the management of Adequate Safaris Limited. The CR12 produced shows that the sole director and shareholder of the alleged rival company was one Maureen Wambui Kabu. In the absence of proof to the contrary, this Court cannot presume the respondent’s involvement in the said company.
12. Equally, the applicants failed to substantiate the allegation that the respondent had made representations linking Adequate Safaris Limited to the 2nd applicant. The excerpt of a WhatsApp message marked “SNN2” bore no evidence of the originating or recipient telephone number, nor did it contain any direct mention of the respondent. Without such authentication, the Court cannot rely on the said communication.
13. The allegation that the respondent withheld the client digital database, diverted updates, or cajoled the 2nd applicant’s clients into paying monies directly to him were also unsubstantiated. The correspondence produced by the respondent from the 2nd applicant’s various Branch Managers demonstrates that funds received from both local and international clients were processed through telephone numbers not exclusively registered in the respondent’s name, and were ultimately deposited into the 2nd applicant’s paybill or bank accounts. The applicants did not deny the respondent’s averment that both directors were joint signatories to the company’s bank accounts, making the alleged unilateral withdrawals impossible.
14. The applicants also relied on an Internal Memo dated 18th December 2024, written by the 1st applicant and addressed to employees of the 2nd applicant, raising concerns about the state of the company. That memo, however, was not supported by any corroborating evidence and therefore cannot, standing alone, sustain the allegations made.
15. Further, the allegation that the respondent transferred motor vehicles registered in the name of the 2nd applicant to Adequate Safaris Limited or other third parties was not supported by any documentary evidence of ownership or transfer.
16. It is a cardinal principle of law that he who alleges must prove. The burden lay squarely upon the applicants to demonstrate their claims to the required standard of proof in civil proceedings, namely, on a balance of probabilities. Mere assertions, unsupported by credible evidence, cannot suffice. In the present case, the applicants did not discharge this burden. The allegations are largely speculative and unsubstantiated, and this Court cannot grant relief on the basis of conjecture or suspicion.
17. The totality of the foregoing is that I am not persuaded that the applicants have established a prima facie case for granting of injunctive reliefs. Following the guidance in Nguruman Limited v Jane Bonde Nielsen and 2 Others NRB Civil Appeal no 77 of 2012 [2014] eKLR, the Court of Appeal emphasized that where a plaintiff fails to satisfy the first condition of demonstrating a prima facie case, the inquiry into whether damages would be an adequate remedy or where the balance of convenience lies does not arise. Applying that principle, it is my finding that the applicants have not met the threshold for injunctive relief, and their application must therefore fail.
18. Even though, for the sake of finality, I was to consider the other two grounds for injunctive relief, the applicants have not demonstrated that they stand to suffer irreparable harm, nor have they provided material to persuade this Court that damages would be insufficient compensation in the event their claim ultimately succeeds. Consequently, the balance of convenience lies in declining the injunction. To restrain the respondent in the absence of proof of wrongdoing or irreparable harm would amount to unjustly fettering the operations of the 2nd applicant company.
Disposition
19. The application dated 20th January 2025 is therefore dismissed. In order not to exacerbate the already strained relationship between the parties, I make no orders as to costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 19th DAY OF MAY 2026.
F. MUGAMBI
JUDGE