The application dated 22ndJuly 2022
9.The application was brought by the 3rd respondent. It cites no specific section of the law but states that it has been brought under the inherent jurisdiction of the court. It seeks the setting aside of the interim orders of July 15, 2022 vide the following prayers:
10.The application is supported by the grounds on the face of it and the supporting affidavit sworn by Parag Savani, the 3rd respondent, on July 22, 2022. The 3rd respondent observed that the court did not have jurisdiction to grant any interim relief under sections 780 and 782 of the Act. It was contended that the petition was incompetent and an abuse of the court process as it was not permissible to file a joint petition in respect to the companies.
11.Further, the 3rd respondent contended that the exparte orders were obtained on material nondisclosure of the fact that there were live proceedings pending before the court where the petitioner instituted proceedings against the 3rd respondent and his father in HCCOMM NO 130 of 2014 and HCCOM 197 of 2015 against the 3rd and 4th respondents and the same were dismissed by the Court of Appeal.
12.The 3rd respondent stated that together with the 4th respondent they were exposed by the exparte order of the court as it gave the petitioner free license to deal with the companies as he pleased to their detriment.
13.The application was opposed by a replying affidavit sworn by the petitioner Jitu Savani on August 4, 2022.
14.Both applications were canvassed by way of written submissions which I have carefully considered alongside the rival pleadings, evidence and authorities filed by the parties in support of their cases.
15.The first issue that this court must deal with is the question of jurisdiction and competence of the petition before thecourt. The 3rd respondent argues that the petition is incurably defective as it was presented as a compound petition and that it was not permissible to file a joint petition with respect to 2 companies. To this the petitioner argued that the joinder of the 1st and 2nd respondent companies was done so as to achieve a speedy resolution in a cost-effective manner. The 3rd respondent relied on the Court of Appeal decision involving the same parties, being Parag Bhabwanjighai Savani v Jitu Tribhovanshai Savani & 2 others,  eKLR. The court had pronounced itself thus:
16.The observations by the Court of Appeal are binding on this court. This court restates these findings in that it would have been prudent for the petitioner to bring different causes of action against the 2 companies, although I also note that the Court of Appeal went ahead to determine the substantive issues in the petition that were before it.
17.Likewise, the question that then begs in the current proceedings is, could the pleadings be cured by an amendment? There appears to be a general view that the court will not dismiss a proceeding merely on procedural grounds unless there is good cause to do so. I say this relying on the case of Yaya Towers Limited v Trade Bank Limited (In Liquidation), Civil Appeal No. 35 of 2000 in which the court expressed itself thus:
19.Numerous judicial pronouncements point towards the generally accepted view that striking out of pleadings should only be a last resort, where the defect in the pleadings is incapable of cure by amendment. The petitioner invites this court to further refer to the spirit behind article 159(2)(d) of the Constitution. It is therefore my view that the matter can be cured by an amendment and there is no reason to strike out the petition.
20.The 3rd respondent further opines that this Honourable Court is devoid of jurisdiction to grant any interim relief under sections 780 and 782 of the Companies Act. In the 3rd respondent’s opinion the petitioner ought to have sought leave to file a derivative action as it is the companies’ interests that he seeks to enforce, as opposed to the proceedings under section 780 of the Companies Act.
21.For the avoidance of doubt, section 780 of the Companies Act provides as follows:
22.Upon the court being satisfied that the affairs of the company are being conducted in an unfair and prejudicial manner, it may grant the reliefs set out in section 782 of the Act which provides that:
23.The fact that the petitioner is a director and shareholder of the 1st and 2nd respondent is not controverted. This gives him a right as a member of the company to invoke temporary relief under section 780. From a reading of the relevant provisions, I find no difficulty in holding that this honourable court has been properly invoked and that it has jurisdiction to hear and determine the application before it and to grant the reliefs sought by the petitioner.
24.Just what is it that amounts to oppressive and prejudicial conduct? Parties have referred to the case of Velani & 6 others v Naran & 2 others,  KEHC 75 (KLR), with which this court concurs. The learned judge held that oppressive and prejudicial conduct is that which is burdensome, harsh and wrongful, or which lacks probity and fair dealing in reference to the affairs of the company. Further, in order to establish unfair practice, the Court stated that two elements must be present:
25.Against this background and on the strength of the law and legal decisions as I have set out, I now turn to considering the substance of the applications before the court.
26.For the court to reach a just determination, it must carefully consider the conduct of the parties. The present circumstances present a most unique challenge. The petitioner confirms that the relationship between himself and the 3rd respondent has broken down irretrievably to an extent that they have not sat for a meeting concerning the running of company affairs for over 5 years. This would certainly have an impact on the relationship between the directors and the operations of the company.
27.Turning to the complaint by the petitioner on the decision to purchase machinery and dispose of equipment which were done without the petitioner’s consent, I note that the same is not controverted by the 3rd respondent. The 3rd respondent however avers that there is an established practice whereby each of the directors would make decisions in their specific areas of management. It is not clear whether this was the role of the 3rd respondent as the same was not canvassed beyond that.
28.The evidence placed before the Court also indicates that at a meeting of November 9, 2015where the petitioner and 3rd petitioner was present, the Board discussed the issue of machinery investment although no resolutions were made. While there is no evidence that the machinery therein relates to the present dispute, the same may provide an insight on how much knowledge the petitioner may have had on the issue. In fact, the petitioner goes on to add that he paid for the machinery upon receipt of the invoices by the suppliers.
29.The petitioner further takes issue with the employment of the 4th respondent by the 3rd respondent, without consulting the petitioner. The petitioner goes on to acknowledge that other than the 4th respondent, the 3rd respondent has in fact appointed another 63 members of staff also without the consent of the petitioner. This averment goes to support the statement made by the 3rd respondent that in fact, the norm has been for both parties to make appointments in their respective areas of operation, a position that the petitioner has not rebutted. If this is the case, it follows that to single out the 4th respondent amongst many other employees that the 3rd respondent had employed would an unfair practice as against the 4th respondent and not in the interests of the companies.
30.The 3rd respondent, in his defence, argues that the company required the services of an ICT expert considering the massive IT upgrade that the company had undertaken. He asserts that the 4th respondent was qualified for the position, a statement that the petitioner denies but acknowledges the magnitude of the technology investment by the companies. The petitioner has not shown any viable alternative that would have been able to carry out the task for the benefit of the company.
31.As for the 4th respondent’s renumeration which the petitioner avers is equivalent to that of a director, the same was termed as unjustified, unconscionable and meant to drain the company resources. This averment stands on shaky ground because the court has not been furnished with policies or details of salaries of other employees on the same scale to be able to decide on the question. I note that the 4th respondent is a son to the 3rd respondent. This in itself does not stop the employment of the 4th respondent in a family owned business.
32.My overall view is that the petitioner has not proved what harm has been occasioned or will continue to be occasioned to the companies and shareholders if the 4th respondent continues to act as an employee of the company pending the hearing and determination of the petition.
33.The other bone of contention is with respect to the position of Managing Director. The petitioner states that he is the Managing Director in the 1st and 2nd respondent companies, a position that the 3rd respondent denies but acknowledges that they both have specific duties relating to the companies. The 3rd respondent in fact denies that the petitioner has any veto powers stating instead that neither the petitioner nor the 3rd respondent holds any veto power over the other. I have perused the Articles of Association for the 2 companies and I note that the same do not provide for the said position.
34.In the absence of any such provision and the fact that the petitioner did not produce any resolution to prove his appointment as Managing Director and the specific roles assigned to him, the court is unable to make a finding on this question.
35.Finally, it is trite that this Court has held in previous judicial pronouncements that exclusion from management in circumstances where there is a legitimate expectation of participation, abuses of power and breaches of the Articles of Association are examples of what may amount to unfair prejudice. (See Velani & 6 others v Naran & 2 others, (Petition E002 of 2020)  KEHC 75 (KLR). On account of all the circumstances placed before the court, I am not satisfied that the petitioner has provided evidence before the court of serious departure from fair standards of fair dealing or unfair prejudice under the circumstances. This is more so noting that there are serious issues between the petitioner and the 3rd respondent that render it difficult to run the companies in a normal way.
36.For the reasons that I have stated, and guided by the principles in Giella v Cassman Brown Co. Ltd,  EA 358, I am certain that the element of a prima facie case with probability of success has not been established. The petitioner has not shown that the 3rd respondent has acted in a manner contrary to the company’s articles so as to be restrained from involvement in the 1st and 2nd defendant companies. Secondly, I agree that the petitioner will not suffer irreparable loss. Any loss that he is likely to suffer can be determined and compensated by an award of damages if the orders of injunction is not granted. Finally, I am of the considered opinion that the balance of convenience lies in granting the orders in favour of the 3rd respondent.
37.Finally, in my assessment, this is a clear case of a deadlock between the directors and in particular, the petitioner and the 3rd respondent to which both are guilty of advancing. It is not therefore difficult to see why the petitioner lays these claims against the 3rd respondent. At the heart of the dispute in fact, lies the issue of who controls the 2 respondent companies.
38.The answer to this question will ultimately determine how the company’s property is used, what transactions are entered into or approved and how the companies are run. The only way that this dispute can be resolved is for the Board of Directors to hold a meeting so as to bring some order into the companies. The state of affairs where business operation relies on court orders is not sustainable.