1. I have considered the Notice of Motion Application Dated 22nd February 2024 together with the affidavit in support sworn on even date, the submissions of counsel and the relevant law. The same is not opposed.
2. The Applicant seeks the following prayers :-
a. A Declaration and/or Order that the Respondent’s refusal to register a transmission of shares in favour of the Applicant has no basis in law.
b. The Respondent be ordered to amend or rectify its records to reflect transmission of 333 shares in Alcon Holdings Limited to the Applicant from his late father, Inderjit Singh Hanspal, by operation of the law.
c. In default of the Respondent’s amendment, change or correction of its records to reflect the transmission of shares in favour of the Applicant within fourteen (14) days, the court to declare that the Applicant is deemed as a shareholder of Alcon Holdings Ltd pending the formal correction of the Respondent’s records.
3. I note from the outset that the Applicant sought the very same orders in Miscellaneous Civil Application E781 of 2023. Prayer 3 in the application reads as follows:
(3)The register of members of the Alcon Holding Limited (the 1st Respondent) be reconstructed and/or rectified to reflect the Applicant (VIJAY HANSPAL) as the holder of 333 shares currently registered in the name of Inderjit Singh Hanspal.
4. This court issued a ruling in respect of the above matter on 30th November, 2023 and conclusively determined the said issue. The court noted the following from paragraphs 20 to 22 of the said ruling:
"20.
Section 103 of the Companies Act contains the general power of the court to order rectification of a register of members of a Company, it provides as follows:-
Power of the Court to Rectify Register
103.
(1) If —
(a)
the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or
b.
the cessation of membership of a person who has ceased to be a member of the company has not been entered in that register, the person affected, or the company or any member of the company, may apply to the Court for rectification of the register."
21.
The Court's power to rectify a register of members is discretionary and must be exercised judiciously, not capriciously or whimsically. Since the procedure is a summary process, the power can only be invoked in the clearest of cases. The two essentials were highlighted in the High Court decision in Suryakant B. Patel & 2 Others v Moses Sekeya Kulndi & 4 Others and Registrar of Companies (Nairobi HC (Com & Tax) Misc. App No. 467 of 2014), cited by the Applicant, in the following terms:-
“
(4)
There is ample judicial authorities as well as respected literally works on the scope of jurisdiction and power of court in determining applications for rectification of register of members of a company. First, the jurisdiction to rectify register by court is discretionary albeit the discretion must always be exercised in accordance with the law; not whimsically; not capriciously. Therefore, the first consideration in the exercise of discretion under section 118 of the Companies Act is; the procedure is a summary process and should be invoked only in clearest of cases. See the case of Prab Hulal Tejpa Haria & Another vs. Pravin Chandra Meghji Dodhia & 2 Others [2007] eKLR, where Warsarme J (as he then was) expressed himself that;
“In my view the summary powers of the court can be invoked in plain and clear cases, where there is no need for a trial.......... The powers under section 118 of the company’s Act cannot be invoked when there is a real and complicated dispute as to the real interests of the parties.”
22.
In the present case, the Applicant is the executor of the estate of the late Inderjit, who held 333 shares in the Company. He has obtained Grant of Probate and Certificate of Confirmation of Grant which was exhibited together with Inderjit's death certificate and last will and testament. I am satisfied that he is entitled to the late Inderjit’s 333 shares in the Company. However, it is also evident that transmission of shares cannot take place at this point, given the circumstances as set out above."
5. At paragraph 30 of the ruling, the Court concluded in the following terms:
"Therefore, based on the reasons as set out above, I am not persuaded that this court ought to issue orders for rectification of the register of members at the present time. Accordingly, I find that the application dated 7th September, 2023, is without merit and the same is dismissed. This being a matter involving a family company, I make no orders as to costs."
6. It is evident from a reading of the above, that the issues raised in the present application have been dealt with fully and conclusively. That ruling has not been set aside and remains valid.
7. Section 7 of the Civil Procedure Act provides that:
"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."
Explanation (4) of that section further provides that:
"Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
8. This court may not redeliberate on the said issues. I find and hold that the issues raised in the present Application are res judicata. The Motion dated 22nd February 2024 is struck out.
2. The Applicant seeks the following prayers :-
a. A Declaration and/or Order that the Respondent’s refusal to register a transmission of shares in favour of the Applicant has no basis in law.
b. The Respondent be ordered to amend or rectify its records to reflect transmission of 333 shares in Alcon Holdings Limited to the Applicant from his late father, Inderjit Singh Hanspal, by operation of the law.
c. In default of the Respondent’s amendment, change or correction of its records to reflect the transmission of shares in favour of the Applicant within fourteen (14) days, the court to declare that the Applicant is deemed as a shareholder of Alcon Holdings Ltd pending the formal correction of the Respondent’s records.
3. I note from the outset that the Applicant sought the very same orders in Miscellaneous Civil Application E781 of 2023. Prayer 3 in the application reads as follows:
(3)The register of members of the Alcon Holding Limited (the 1st Respondent) be reconstructed and/or rectified to reflect the Applicant (VIJAY HANSPAL) as the holder of 333 shares currently registered in the name of Inderjit Singh Hanspal.
4. This court issued a ruling in respect of the above matter on 30th November, 2023 and conclusively determined the said issue. The court noted the following from paragraphs 20 to 22 of the said ruling:
"20.
Section 103 of the Companies Act contains the general power of the court to order rectification of a register of members of a Company, it provides as follows:-
Power of the Court to Rectify Register
103.
(1) If —
(a)
the name of any person is, without sufficient cause, entered in or omitted from the register of members of a company; or
b.
the cessation of membership of a person who has ceased to be a member of the company has not been entered in that register, the person affected, or the company or any member of the company, may apply to the Court for rectification of the register."
21.
The Court's power to rectify a register of members is discretionary and must be exercised judiciously, not capriciously or whimsically. Since the procedure is a summary process, the power can only be invoked in the clearest of cases. The two essentials were highlighted in the High Court decision in Suryakant B. Patel & 2 Others v Moses Sekeya Kulndi & 4 Others and Registrar of Companies (Nairobi HC (Com & Tax) Misc. App No. 467 of 2014), cited by the Applicant, in the following terms:-
“
(4)
There is ample judicial authorities as well as respected literally works on the scope of jurisdiction and power of court in determining applications for rectification of register of members of a company. First, the jurisdiction to rectify register by court is discretionary albeit the discretion must always be exercised in accordance with the law; not whimsically; not capriciously. Therefore, the first consideration in the exercise of discretion under section 118 of the Companies Act is; the procedure is a summary process and should be invoked only in clearest of cases. See the case of Prab Hulal Tejpa Haria & Another vs. Pravin Chandra Meghji Dodhia & 2 Others [2007] eKLR, where Warsarme J (as he then was) expressed himself that;
“In my view the summary powers of the court can be invoked in plain and clear cases, where there is no need for a trial.......... The powers under section 118 of the company’s Act cannot be invoked when there is a real and complicated dispute as to the real interests of the parties.”
22.
In the present case, the Applicant is the executor of the estate of the late Inderjit, who held 333 shares in the Company. He has obtained Grant of Probate and Certificate of Confirmation of Grant which was exhibited together with Inderjit's death certificate and last will and testament. I am satisfied that he is entitled to the late Inderjit’s 333 shares in the Company. However, it is also evident that transmission of shares cannot take place at this point, given the circumstances as set out above."
5. At paragraph 30 of the ruling, the Court concluded in the following terms:
"Therefore, based on the reasons as set out above, I am not persuaded that this court ought to issue orders for rectification of the register of members at the present time. Accordingly, I find that the application dated 7th September, 2023, is without merit and the same is dismissed. This being a matter involving a family company, I make no orders as to costs."
6. It is evident from a reading of the above, that the issues raised in the present application have been dealt with fully and conclusively. That ruling has not been set aside and remains valid.
7. Section 7 of the Civil Procedure Act provides that:
"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court."
Explanation (4) of that section further provides that:
"Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
8. This court may not redeliberate on the said issues. I find and hold that the issues raised in the present Application are res judicata. The Motion dated 22nd February 2024 is struck out.