Mom Vision Prodeca (mvp) Foundations v Prince Moustapha Ndaiye

Respondent’s alleged refusal to provide notarized identification documents required by the bank, which has resulted in a "complete deadlock" in the operation of the accounts. 3. The Applicant further alleges that the Respondent, who resides outside Kenya, has engaged in continuous acts of obstruction and sabotage, frustrating the foundation's ability to utilize donor funds. It is argued that such conduct amounts to mismanagement and is prejudicial to the interests of the Company under Sections 143 and 780 of the Companies Act, 2015. 4. Despite being duly served with the Application and the Court's directions, the Respondent did not file a Replying Affidavit or any grounds of opposition. Consequently, the Applicant’s evidence remains uncontroverted. Analysis and Determination 5. Having considered the pleadings and the written submissions filed by the Applicant, I find that the sole issue for determination is whether the application is merited. 6. It is a well-settled principle in law, as cited by the Applicant in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR, that where allegations are not denied, they are deemed admitted. 7. It is trite law that where a party fails to respond to pleadings, the evidence placed before court stands uncontroverted and the allegations are deemed admitted. However, a claimant is always under a duty to discharge the burden of proof. In Gichinga Kibutha v Caroline Nduku [2018] eKLR, the Court stated that: “ It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must prove his case, however much the opponent has not made a presence in the contest.” 8. Regarding the removal of the signatory, the Court notes that under Section 143 of the Companies Act 2015, directors are responsible for the management of the company's business. The appointment or removal of a bank signatory is an administrative and operational function of the Board. As held in Ghelani Metals Ltd & 3 Others v Elesh Ghelani Natwarlal & Another [2017] eKLR, a Board may withdraw operational responsibilities while preserving a person’s directorship. 9. The Court is alert of the rule in Foss v Harbottle (1843), which generally prevents judicial interference in internal company matters that can be ratified by a majority. However, the Applicant in this case is not asking the Court to make a management decision, but rather to give legal effect to a resolution already passed by the Board to prevent operational paralysis and the loss of donor funds. 10. In the present case, the Applicant has demonstrated that the Respondent's continued status as a signatory, coupled with his refusal to comply with mandatory banking protocols, is prejudicial to the foundation. To meet the ends of justice and ensure the continuity of the Applicant’s operations, the Court finds the application meritorious. 11. Accordingly, I make the following orders: i. A Declaration is hereby issued that the Respondent was removed and ceased to be an authorized signatory of the Applicant's Bank Accounts (USD 1309615497 and KES 1309615411) held at Kenya Commercial Bank Limited (Moi Avenue Branch) via the resolution dated 19th November 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/176/eng@2026-01-15 2

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12. ii. An Order is hereby issued directing the Head of Risk and Compliance, Kenya Commercial Bank Limited, to rectify the register of signatories for the said accounts by deleting and cancelling the mandate of the Respondent. iii. Costs of this application, which is hereby assessed at Kshs.100,000/= is awarded to the Applicant against the Respondent It is so ordered. SIGNED, DATED, AND DELIVERED IN VIRTUAL COURT THIS 15TH JANUARY 2026 ADO MOSES JUDGE In the presence of: C/A – Moses Ms. Ofwa ........... for the Applicant. N/A ........... for the Respondent. Ms. Nambiringi h/b for Mbari .... for the Interested Party. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/176/eng@2026-01-15 3

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