REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COMMERCIAL & ADMIRALTY DIVISION CIVIL SUIT NO. 58 OF 2018 OILFIELD MOVERS LIMITED ........................... 1ST PLAINTIFF/APPLICANT MAYPHIL INVESTMENT LIMITED .................. 2ND PLANTIFF/APPLICANT C & G VENTURES LIMITED ............................. 3RD PLAINTIFF/APPLICANT VERSUS KENYA ENERGY SERVICES LTD ........... 1ST DEFENDANT/RESPONDENT EAST AFRICAN OILFIELD SERVICES LIMITED ................................. 2ND DEFENDANT/RESPONDENT RULING 1. The prayers in the Notice of Motion of 9th February 2018 have all but been overtaken by events or compromised. The motion seeks;5. THAT pending the hearing and determination of this suit a temporary injunction be issued against the 1 st and 2nd Defendants/Respondents whether by itself, agent, employee or representative from disposing of any movable assets belonging to the 1st Defendant. 6. THAT pending the hearing and determination of this suit a freezing order be issued in respect to A/C No.1002401815 and 1002401823 held by the 1st Defendant at NIC Bank Kenya PLC, Prestige Branch. 7. THAT pending the hearing and determination of the suit an Interim Injunction be issued against the 2 nd Defendant whether by itself, agent, employee or representative from interfering with the Board of Directors of the 1 st Defendant/Respondent. 8. THAT leave be granted to serve summons or notice of summons to the 2 nd Defendant in Seychelles. 9. THAT cost of the Application be provided for. 2. At the hearing of the Motion, the Applicants concede that the Freezing Order of the 1 st Defendant’s account may serve no purpose as there are no substantial funds therein. As the Applicants acknowledge the futility of such an order, there is no need to grant it and it is therefore declined. 3. As to disposal of movable assets of the 1st Defendant, it has turned out that the substantial movable assets of the 1 st Defendant comprise of 12 Tower lights and two Power Generators. The 1 st Defendant contends that it has not taken any steps to dissipate any of its Assets or to move them outside the jurisdiction of the Court. I did not hear the 1 st Defendant to have any particular or serious objection to the grant of Prayer 5 and I therefore grant it. 4. Prayer 8 which is for service of Summons outside jurisdiction is no longer necessary as both Defendants have appointed Counsel to act for them in this matter.
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5. Prayer 7 seeks that the 2 nd Defendant whether by itself, agents, employee or representatives be restrained from interfering with the Board of Directors of the 1 st Defendant. Yet it is common cause that the 2 nd Defendant is the majority Shareholder of the 1 st Defendant (see for example paragraph 22 of the Plaint). Another feature of this dispute is that the Plaintiffs are not, and have never been, Shareholders or Directors of the 1st Defendant Company. The Plaintiff alleged that they paid for the purchase of Shares in the 2 nd Defendant but the funds from the purchase were used to invest in the operations of 1 st Defendant. In the substantive Claim, the Plaintiffs do not ask for control of the affairs of the 1st Defendant and that may not be a feasible Claim as they do not have a direct interest in the 1 st Defendant. If it is the 2 nd Defendant and not the Plaintiffs who are the majority Shareholders of the 1 st Defendant then to grant the Order sought would be to unreasonably stifle the affairs and management of the 1 st Defendants. The Court is disinclined to grant the order. 6. Ultimately, the Court makes the following orders in respect to the Notice of Motion dated 9 th February, 2018:(i) Prayer 6 and 7 are declined. (ii) Prayer 5 is granted. (iii) Costs shall be in the cause Dated, delivered and signed in open Court at Nairobi this 5th day of June 2018. F. TUIYOTT JUDGE In the presence of; Wachira for the Plaintiff Kahara for the Respondents Nixon-Court Assistant
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