Sachin Amritlal Purshottam Bhimji Devani v Kishor Purshottam Bhimji Dvani & 1 other

b. Provide full and accurate information to the shareholders, including audited accounts and company records c. Restraining the Respondents from conducting any afiairs prejudicial to the Petitioner and the estate of the deceased pending final orders of the court. 4. In support of the application, the Petitioner swore a Supporting Affidavit dated 13/06/2025. The Petitioner deponed as per the averments in the Petition. The Petitioner annexed a copy company search from the Registrar of Companies and several letters of request for General Meetings which the Respondents have ignored. 5. The matter was mentioned on 21/08/2025 before the Deputy Registrar and it was stated that the Petitioner’s counsel informed the court that they were yet to be served with a Response from the Respondents. Again, the matter was mentioned before the Deputy Registrar on 23/09/2025. The counsel for the Respondent, Mr. Furaha stated that the Respondent were yet to comply. The parties were given a mention date before this court on 28/10/2025. 6. On the said date, the Respondents did not appear in court despite the date being taken by consent. The court was informed that the Respondents were yet to file a response to the Petition. The court directed that even though the Petition was not opposed, the Petitioner had the onus of proving its case to justify the granting of orders being sought for. It was directed that the Petition be canvassed by way of written submissions and judgment date fixed for 04/12/2025. 7. I note from the CTS that the Respondents filed a Notice of Preliminary Objection and Grounds of Opposition, both dated 10/11/2025. A Replying Affidavit dated 17/11/2025 was also filed. The above mentioned pleadings were filed after directions on the disposal of the Petition had already been taken. The Respondent ought to have sought the leave of court to have the said documents filed out of time. No such leave was sought. The said documents are hereby struck out from the court records. Analysis 8. 9. This court has considered pleadings, the evidence and submissions on record. The issues for determination are: a. Whether the Petitioner has proved his case on a balance of probabilities b. What are the orders on costs Even though the Petition is deemed as unopposed, the Petitioner has the onus of proving his case. Section 107, 108 and 109 of the Evidence Act is the starting point. It provides thus: 107. 1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of fact which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies in that person. 108. The proof a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. 109. The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19530/eng@2025-12-05 2

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10. It is the duty of the Petitioner to present his evidence in support of his averments in his pleadings. In CMC Aviation Ltd v Crusair Ltd (No. 1) [1978] KLR 103; [1976 – 80] 1KLR 835, Madan, J (as he then was) expressed himself as follows: “ …Pleadings contain the averments of the parties concerned. Until they are proved or disproved, or there is an admission of them or any of them, by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation. Until their truth has been established or otherwise, they remain un-proven. Averments in no way satisfy, for example, the definition of “evidence” as anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that it is truth…” 11. It was the Petitioner’s case that the Respondents had failed to convene Annual General Meetings at least once a year contrary to the provisions of section 275A (1) and (4) of the Companies Act. He relied on the several correspondences to the Respondents requiring them to convene a General Meeting, yet no action was taken. 12. The Petitioner further submitted that the Respondents were in breach of section 780 and 882 of the Companies Act where the minority shareholders are protected from the oppressive and prejudicial conduct by those in control of the company. Reliance was made on the case of Velani & 6 others v Naran & 2 others (Petition E002 of 2020) [2021] KEHC 75 (KLR) where it was held that failure to hold AGMs, provision of financial statements and depriving members of the company the right to know the afiairs of the company, amounts to unfair and prejudicial conduct. 13. The pleading by the Respondents having been struck out, it is deemed that here being no evidence by the Respondents. I find that the Plaintifi’s evidence remains unchallenged. (see Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR). 14. By the production of the documents in support of his case, I find that the Petitioner has proved his case on a balance of probabilities. I am therefore inclined to enter judgment in favour of the Petitioner against the Respondents as prayed in the Petition. 15. On costs, it follows that the successful party gets awarded the costs of the suit. However, the award of costs being discretionary. The Respondents having shown laxity in the suit, I find no reason to deny the Petitioner costs of the Petition. Determination 16. The upshot of the foregoing is that the court renders itself as hereunder; a. The Petition dated 13/06/2025 is merited and is allowed as prayed. b. The Preliminary Objection and Grounds of Opposition both dated 10/11/2025, and the Replying Affidavit dated 17/11/2025 are hereby struck out. c. Costs awarded to the Petitioner. DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 5TH DAY OF DECEMBER, 2025. ……………… F. WANGARI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19530/eng@2025-12-05 3

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JUDGE In the presence of: Mr. Busieka Advocate for the Petitioner. Mr. Furaha Advocate h/b for Mr. Adhoch Advocate for the Respondents. Ms. Salwa, Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19530/eng@2025-12-05 4

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