1. The Respondents seek settlement of the Order issued on 8th March 2023 on the ground that it does not reflect decision of the court contained in the ruling delivered on 16th December 2021 by Okwany J.
2. This ruling was in respect of the Applicant’s application dated 3rd December 2019 where they sought the following orders:
a. Spent.
b. THAT this Honourable Court be pleased to issue orders restraining the Respondents, their agents or anyone acting on their authority from interfering with the Bank account, business operations, transactions and/or assets or in any other way purporting to run the affairs of WEKHAN INVESTMENT LIMITED pending the hearing and determination of the application.
c. THAT this Honourable court be pleased to compel the respondents to render account of the 1st applicant company pending hearing and determination of this application.
d. THAT this honourable court be pleased to issue orders restraining the respondents, their agents or anyone acting on their authority from interfering with the bank account, business operations, transactions and/or assets or in any other way purporting to run the affairs of WEKHAN INVESTMENT LIMITED pending hearing and determination of the suit filed herewith.
e. This honourable court be pleased to compel the Respondents to render account of the 1st applicant Company pending hearing and determination of the suit filed herewith.
f. THAT this honourable court be pleased to issue any other orders in the interest of justice
g. THAT the cost of this application be in the cause.
3. The court considered the application and held as follows:
[10] With regard to the prayers for orders of injunction to stop the operations of the Companies Bank account, I find that the applicants did not demonstrate that they how they will suffer irreparable harm that cannot be compensated by damages should the court decline to grant the orders of injunction. Courts have also taken the position that they will not interfere with the running of the affairs of a company (see Foss vs Harbottle [1843] 2 Hare 461).
[11] In the upshot, I find that the prayer for orders of injunction is not merited. I however note that the prayer for the rendering of accounts is important to the determination of main suit as it will aid the court in determining the main suit. For this reason, I allow prayer C of the application and direct that the respondents render the accounts within 30 days from the date of this ruling. The costs of this application shall be in the cause.
4. The order approved by the Deputy Registrar and issued by the court on 8th March 2021 reads as follows:
[a] THAT the Respondents be and is hereby compelled to render account of the 1st Applicant within 30 days from 16/12/2021 being the date of the ruling.
[b]THAT costs of this Application shall be in the cause.
[c] THAT mention on 23rd March 2022
5. The Respondent’s complaint arises from the fact that on 5th December 2019, the court granted an ex-parte order on the following terms:
[2] THAT an order be and is hereby issued restraining the Respondents, their agents or anyone acting on their authority from interfering with the Bank account, business operations, transactions and/or assets or in any other way purporting to run the affairs of WEKHAN INVESTMENT LIMITED pending the hearing and determination of the application.
6. The purport of the ruling as I have shown above is that the Plaintiffs’ application was in fact dismissed save for prayer no. (c) which was granted. The effect of this was to automatically discharge the injunction granted on 5th December 2019 In order to give full effect to the ruling, I direct that the order be amended to read as follows:
(a) The application dated 3rd December 2023 be and is hereby dismissed save that the Respondents be and are hereby compelled to render account of the 1st Applicant Company within 30 days from 16/12/2021 being the dated of the ruling.
(b) That the costs of this application shall be in the cause.
(c) That mention on 23/03/2022.
7. In the interests of justice and in order to give effect to the ruling delivered on 16th December 2021, I direct that the exparte order granted on 5th December 2019 be and is hereby discharged.
DATED and DELIVERED at NAIROBI this 26th day of MAY 2023
D. S. MAJANJA
JUDGE
2. This ruling was in respect of the Applicant’s application dated 3rd December 2019 where they sought the following orders:
a. Spent.
b. THAT this Honourable Court be pleased to issue orders restraining the Respondents, their agents or anyone acting on their authority from interfering with the Bank account, business operations, transactions and/or assets or in any other way purporting to run the affairs of WEKHAN INVESTMENT LIMITED pending the hearing and determination of the application.
c. THAT this Honourable court be pleased to compel the respondents to render account of the 1st applicant company pending hearing and determination of this application.
d. THAT this honourable court be pleased to issue orders restraining the respondents, their agents or anyone acting on their authority from interfering with the bank account, business operations, transactions and/or assets or in any other way purporting to run the affairs of WEKHAN INVESTMENT LIMITED pending hearing and determination of the suit filed herewith.
e. This honourable court be pleased to compel the Respondents to render account of the 1st applicant Company pending hearing and determination of the suit filed herewith.
f. THAT this honourable court be pleased to issue any other orders in the interest of justice
g. THAT the cost of this application be in the cause.
3. The court considered the application and held as follows:
[10] With regard to the prayers for orders of injunction to stop the operations of the Companies Bank account, I find that the applicants did not demonstrate that they how they will suffer irreparable harm that cannot be compensated by damages should the court decline to grant the orders of injunction. Courts have also taken the position that they will not interfere with the running of the affairs of a company (see Foss vs Harbottle [1843] 2 Hare 461).
[11] In the upshot, I find that the prayer for orders of injunction is not merited. I however note that the prayer for the rendering of accounts is important to the determination of main suit as it will aid the court in determining the main suit. For this reason, I allow prayer C of the application and direct that the respondents render the accounts within 30 days from the date of this ruling. The costs of this application shall be in the cause.
4. The order approved by the Deputy Registrar and issued by the court on 8th March 2021 reads as follows:
[a] THAT the Respondents be and is hereby compelled to render account of the 1st Applicant within 30 days from 16/12/2021 being the date of the ruling.
[b]THAT costs of this Application shall be in the cause.
[c] THAT mention on 23rd March 2022
5. The Respondent’s complaint arises from the fact that on 5th December 2019, the court granted an ex-parte order on the following terms:
[2] THAT an order be and is hereby issued restraining the Respondents, their agents or anyone acting on their authority from interfering with the Bank account, business operations, transactions and/or assets or in any other way purporting to run the affairs of WEKHAN INVESTMENT LIMITED pending the hearing and determination of the application.
6. The purport of the ruling as I have shown above is that the Plaintiffs’ application was in fact dismissed save for prayer no. (c) which was granted. The effect of this was to automatically discharge the injunction granted on 5th December 2019 In order to give full effect to the ruling, I direct that the order be amended to read as follows:
(a) The application dated 3rd December 2023 be and is hereby dismissed save that the Respondents be and are hereby compelled to render account of the 1st Applicant Company within 30 days from 16/12/2021 being the dated of the ruling.
(b) That the costs of this application shall be in the cause.
(c) That mention on 23/03/2022.
7. In the interests of justice and in order to give effect to the ruling delivered on 16th December 2021, I direct that the exparte order granted on 5th December 2019 be and is hereby discharged.
DATED and DELIVERED at NAIROBI this 26th day of MAY 2023
D. S. MAJANJA
JUDGE