Patel & another v Patel & 2 others [2022] KEHC 9984 (KLR)

Patel & another v Patel & 2 others (Civil Case E006 of 2022) [2022] KEHC 9984 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9984 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Case E006 of 2022

RN Nyakundi, J

July 19, 2022

Between

Himesh Rajeni Patel

1st Plaintiff

RM Estates Limited

2nd Plaintiff

and

Rajiv Ramesh Patel

1st Defendant

I&M Bank Limited

2nd Defendant

Bank of Baroda Limited

3rd Defendant

Ruling

1Before court is a notice of motion dated 5th July 2022 expressed to be brought under Sections 1A, 1B, 3A 63(e) of the Civil Procedure Act, Cap 21 of the Laws of Kenya, sections 143 and 144 of the Companies Act, The Companies (General) Regulations2015, Order 51 Rule 1 of the Civil Procedure Rulesand sections 1A, 2B, 3 and 3A of the Civil Procedure Act 51 Rule 1 of the Civil Procedure Rules and sections 1A, 2B, 3 and 3A of the Civil Procedure Act and any other enabling provisions of the law).Relying on the above provisions the applicant sought the following substantive reliefs;2. That pending the hearing and determination of this application inter-parties, an order of injunction be and is hereby issued restraining the 1st Defendant/respondent from interfering in any manner whatsoever and howsoever with the daily operations and access to the bank accounts held by the 2nd plaintiff company at the 1st and 2nd defendants/respondents and not to interfere with the 2nd plaintiff company in any manner whatsoever and howsoever whether by itself, directors, shareholders, its employees, servants, agents and/or otherwise accessing and operating the subject bank accounts on behalf of and/or otherwise accessing and operating the subject bank accounts on behalf of and for the benefit of the 2nd plaintiff company pursuant to its Memorandum and Articles of Association on the following bank accounts respectively and as applicable:-(a)Bank of Baroda (Kenya)Limited – Account NO.95880400000130. (b)I&M Bank limited – Account NO. 01701673491210. 3.Thatpending the hearing and determination of this Application inter-parties an order of injunction be and is hereby issued restraining all the Defendants/ Respondents from Interfering in any manner whatsoever and howsoever with the daily operations and access to the bank accounts held by the 2nd plaintiff company with the 1st and 2nd Defendants/ Respondents and not to interfere in any manner whatsoever and howsoever with the 2nd Plaintiff company whether by itself, directors, shareholders, its employees, servants, agents and/or otherwise accessing and operating the subject bank accounts on behalf of and for the benefit of the 2nd Plaintiff company pursuant to its Memorandum and Articles of Association on the following bank accounts respectively and as applicable:(a)Bank of Baroda(Kenya) Limited Account No, 95880400000130(b)I&M Bank limited – Account No. 01701673491210. 4.Thatpending the hearing and determination of this suit, an order of injunction be and is hereby issued restraining all the Defendants/ Respondents from interfering in any manner whatsoever and howsoever with the daily operations and access to the bank accounts held by the 2nd Plaintiff company with he 1st and 2nd Defendants/ Respondents and not to interfere in any manner whatsoever and howsoever with the 2nd Plaintiff company whether by itself, directors, shareholders, its employees, servants, agents and/ or otherwise accessing and operating the subject bank accounts on behalf of and for the benefit of the Plaintiff company pursuant to its Memorandum and Articles of Association on the following bank accounts(a)Bank of Baroda(Kenya) Limited Account No, [Particulars Withheld].(b)I&M Bank limited – Account No. [Particulars Withheld].5. Thatpending the hearing and determination of this suit, an order be and is hereby issued to the 2nd and 3rd Defendants/ Respondents, their servants, agents or employees and particularly their respective Branch Managers at Eldoret, directing them to allow access and normal ordinary business transactions on the 2nd Plaintiff company's bank accounts being Bank of Baroda Account Number [Particulars Withheld]and I & M Bank Account Number 0[Particulars Withheld] respectively and as applicable as per the 2nd Plaintiff company's Memorandum and Articles of Association or any other lawful mandate of the company and allow the plaintiffs to access and operate the said accounts on behalf of and for the benefit of the company within the mandate given by the company.

2In this case the respondents were duly served with the motion and corresponding annextures for them to enter appearance including filing the necessary rejoinders to the application. From the record it is apparent that only the 3rd respondent who elected to enter appearance and subsequently filed a replying affidavit on its perspective of the justiciable issues. The upshot of it, is that the prosecution of the motion partially proceeds as an undefended suit. In the present application the discretion of the court is exercised within the totality of all the circumstances of the dispute and the material facts before the court as at this juncture.

3I have perused the supporting affidavit, the grounds enshrined on the face of the motion I am satisfied that there exist compelling circumstances of this case for exercising the courts discretion in favour of the applicants. Consequently, I allow the application in terms of prayers number 3, 4 & 5 as they relate to operationalization of the bank accounts as positively identified by the applicants. In reaching at this decision I am guided by the principles in Wasike –v- Swala (1984) KLR 591. For the reasons I have endeavored to state I make no orders as to costs.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19thDAY OF JULY, 2022. ............................R. NYAKUNDIJUDGEIn the presence of:-Mr Waziri acting alongside with Mr Nyachoti for the applicantMr Ruto for Ouma for the 3rd defendant