Dr. Peter Kahara Munga v African Banking Corporation Limited & 2 others

application for similar orders. Another ruling had been delivered in Kiambu HC. Comm. Suit No. E006 of 2025 on 11th April 2025 discharging injunctive orders similar to those sought in the present application. 6. In response to the 1st and 2nd Defendant’s application dated 21st May 2025, the Plaintiff swore and filed the Affidavit dated 23rd May 2025. Through the Affidavit, the Plaintiff depones that the 1st and 2nd Defendants allegations are unfounded as none of the issues in the alleged suits are directly and substantially in issue in the present suit. That Milimani HC Commercial Suit No. E602 of 2024 which the 1st and 2nd Defendant alleges was not disclosed is not an active case in the Kenyan courts. The said case was duly withdrawn through the Notice of Withdrawal dated 11th March 2025 (more than a month before institution of the present suit) and endorsed by the Court. 7. Moreover, the Plaintiff asserts that the Milimani HC Commercial Suit No. E602 of 2024 is distinct from the present suit. The said suit was grounded on inter alia, fraud, misrepresentation as well as negligence. The present suit in stark contrast seeks orders to compel the Defendants to put in place mechanisms, to ensure the best commercially reasonable price in selling the plaintiff’s shares, ensure the protection of investors and ensure the safeguarding of the market value of a company listed on the stock exchange. 8. That the distinctiveness of the two suits is thus express and evident. While Milimani HC Commercial Suit No. E602 of 2024 sought to permanently restrain the sale of the Plaintiff’s shares, the present suit is not opposed to the sale of the shares save for putting in place of mechanisms by the Defendants. 9. The Plaintiff states that with respect to Kiambu HC Commercial suit No. E006 of 2025, it is not true as alleged that the Plaintiff did not disclose the existence of the case to the court. Through Paragraph 18 of the Plaint dated 10th February 2025, the Plaintiff fully and expressly brought to the attention of the court, the existence of the suit before Kiambu High Court. The Plaintiff maintains that he is thus not guilty of material non-disclosure as alleged. 10. In addition, the Plaintiff argues that the disclosure non-withstanding, Kiambu HC Commercial Suit No. E006 of 2025 primarily sought orders to restrain the Defendant’s from disposing off the plaintiff’s shares, until the primary debtor was pursued. That these are not similar orders as in the present suit. In fact, the orders sought are substantially different from the orders sought in the present case. 11. The Plaintiff submits that as highlighted above, the present suit seeks orders to compel the Defendants to put in place mechanisms, to ensure the best commercially reasonable price in selling the plaintiff’s shares, ensure the protection of investors and ensure the safeguarding of the market value of a company listed on the stock exchange. The two suits are thus substantially different. Analysis and Determination 12. Having carefully and keenly perused and considered the 1st and 2nd Defendants’ application dated 21st May 2025 challenging the exparte orders issued herein on 15th April 2025 in favour of the Plaintiff on an application of even date, the supporting and replying affidavits, the parties’ pleadings, the rulings on record and the respective rival submissions filed by the parties’ counsel in the matter. The simple question I have to answer is whether or not to set aside or discharge the exparte orders issued by this court on 15th April 2025 and strike out the entire suit. 13. Order 40 Rule 7 of the Civil Procedure Rules provides that any order for an injunction may be discharged, or varied or set aside by the court on application made thereto made by any party dissatisfied with such order. The right to apply for discharge of the ex parte orders and the court’s power to discharge such orders is not in doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14340/eng@2025-07-30 2

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14. The 1st and 2nd Defendants in this case seek that the ex parte orders are discharged and the entire suit be struck out since they were obtained and filed through concealment of material acts, namely, there are two rulings dismissing a similar application for injunction and existence of two others suits between the parties over the same issues. 15. The Plaintiff does not contest that he filed Milimani HC. Comm. Suit No. E602 of 2024 Dr. Peter Kahara Munga v African Banking Corporation Ltd, ABC Capital Ltd & Equatorial Nut Processors. The main relief sought in the Plaint was an injunction to stop the sale of 75, 000, 000 shares in Britam. 16. In the same suit the Plaintiff also filed the Notice of Motion dated 4th October 2024. The main relief sought therein was an injunction to stop the sale of 75, 000, 000 shares in Britam. 17.. The Plaintiff does not contest that a ruling dated 29th January 2025 was delivered on merits dismissing the application. 18. The Plaintiff does not also contest that he then filed Kiambu HC. Comm. Suit No. E006 of 2025 Dr. Peter Kahara Munga v African Banking Corporation Ltd, ABC Capital Ltd. The main relief sought was an injunction to stop the sale of 75, 000, 000 shares in Britam. 19. In the same suit the Plaintiff also filed the Notice of Motion dated 2nd February 2025. Again, the main relief sought was an injunction to stop the sale of 75, 000, 000 shares in Britam. 20. Further, the Plaintiff does not contest that an application was filed to discharge the ex parte orders and a ruling dated 11th April 2025 was delivered on merits dismissing the application. 21. Going to the matter at hand, the Plaintiff filed the Certificate of Urgency, Notice of Motion application and a Supporting Affidavit all dated 15th April 2025. It is on the premise of this application that the ex parte orders sought to be discharged were issued. 22. A perusal of all these pleadings reveals that there is no mention of the previous cases and determinations by the High Court in Milimani and the High Court in Kiambu. 23. The Plaintiff slyly made a passing mention of the Kiambu suit in the Plaint but failed to disclose that there were two rulings on the same issue. 24. Without belabouring on the issues, I agree and find that the Plaintiff completely omitted to disclose to this court that a ruling had been delivered on 29th January 2025 in Milimani HC. Comm. Suit No. E602 of 2024 dismissing his application for injunction and that the Plaintiff also failed to disclose that a ruling had been delivered in Kiambu HC. Comm. Suit No. E006 of 2025 on 11th April 2025 on the same issues raised in this suit. 25. Accordingly, I make the following orders: 26. a. The application dated 15th April 2025 and the entire suit herein are hereby struck out for being scandalous, frivolous, vexatious, forum shopping and an abuse of court process. b. Since the matter has been determined summarily, the Defendants will have costs on the lower scale. c. File is closed It is so ordered RULING WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 30TH JULY 2025 NOEL I ADAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14340/eng@2025-07-30 3

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JUDGE Delivered on the virtual platform, Teams this 30TH JULY 2025 In the presence of : Mr. Theuri & Mr. Tali for the Plaintiff/Respondent Mr. Kiplangát for the 1st & 2nd Defendants/Applicants Ms. Ivy Makena for the 2nd Deefndant Milly- Court Asst. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14340/eng@2025-07-30 4

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