Jitu Tribhovanbhai Savani v Plastic Products Co Ltd & 3 others

acknowledgment of the letter, no response was received, and subsequent reminders, including one on 14th May 2025 went unanswered. 4. The Applicants state that on 16th May 2025, ICS issued a notice of a preliminary Zoom meeting with only two hours’ lead time. Following protest from their advocates, the meeting was adjourned to 20th May 2025. At that meeting, it emerged that ICS had engaged in undisclosed communications with the Petitioner’s advocates. ICS later forwarded correspondence revealing that it had sent a letter dated 19th April 2025 to an incorrect email address, and had nonetheless proceeded to communicate with the Petitioner’s advocates, including convening a preliminary meeting at their request. 5. The Applicants contend that these actions demonstrate partiality and that as a result, they had lost confidence in the ability of ICS to ensure fairness in the exercise. It is this perceived bias and breakdown of trust that has culminated in the application now before me. 6. The Petitioner, who is also the Respondent, opposes the application through a Replying Affidavit sworn on 28th July 2025. He explains that following the Court’s judgment of 21st February 2025, he was tasked with serving the judgment upon ICS and thereafter, through his advocates, initiated communication with the institution to facilitate a preliminary meeting aimed at resolving the stalemate with the Applicants. 7. The Respondent confirms that initial correspondence was exchanged in March 2025, and that ICS responded in terms similar to its reply to the Applicant’s advocates, inviting parties to propose dates for the first meeting. The Respondent acknowledges the Applicants’ complaint regarding the short twohour notice for the preliminary meeting of 16th May 2025, but notes that the meeting was rescheduled at the Applicant’s prompting. 8. He emphasizes that ICS apologized for the breakdown in communication, and that he himself received the subsequent notice at the same time as the Applicants, without any prior agenda. A subsequent meeting was convened on 20th May 2025 with four days’ notice, during which the parties agreed to streamline communication by sharing all correspondence through a common email trail. It was further agreed that all prior communications would be disclosed to foster transparency, and indeed these were shared on the same day. 9. By consent, the parties also agreed to seek extension of the Court’s timelines, since the 60-day period for convening a Board meeting had lapsed on 21st April 2025. The Respondent stresses that the preliminary meetings were intended only to establish communication channels, and that substantive business directed by the Court could not be transacted until time was extended. He therefore argues that the Applicants’ motion is premature, as no engagement on the substantive issues had yet taken place. 10. He further notes that on 21st May 2025, ICS reassured all parties of its commitment to transparency, and on 22nd May 2025 initiated fresh communication to agree on a convenient date for the Board meeting. Following exchanges, the parties settled on 13th June 2025, with ICS issuing a formal notice and agenda on 5th June, and a reminder on 9th June. However, before the meeting could be held, the Applicant’s advocates served a Court order staying the process on 12th June 2025. 11. The Respondent maintains that ICS is the most suitable body to convene the parties, being the statutory institution mandated to promote good governance in both public and private sectors. He submits that while there were initial procedural lapses, ICS tendered apologies and thereafter conducted itself in an inclusive, participatory, and professional manner. As Managing Director of the 1st and 2nd Respondents, he asserts that it is in the best interests of the companies that the application be dismissed to allow ICS to continue its intervention. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/431/eng@2026-01-23 2

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Analysis and Determination 12. I have carefully considered the pleadings, affidavits, and the written submissions filed by both parties. It is evident to me that, notwithstanding their difierences, the parties agree on the general path adopted by this Court in its judgment of 21st February 2025. Specifically, there is consensus that the governance challenges afflicting the 1st and 2nd Respondent Companies ought to be resolved through the intervention of a neutral third‑party institution with the relevant expertise. 13. From the record, it is also evident that both parties, acting independently, initiated preliminary communication with ICS, each seeking to present their own perspective on the underlying disputes. The Respondent, however, did not copy his correspondence to the Applicants, a situation that may have created an impression of unilateral engagement. ICS also, upon receipt of these separate communications, responded to each party, and in some instances individually, although consistently emphasizing on the need for a structured meeting. 14. In its letter of 9th April 2025, responding to that dated 19th 2025, ICS wrote to the Applicants’ advocates that: “ ICS affirms that it does not engage in unilateral communication with any party in dispute; all official correspondence from ICS shall be shared with all relevant parties.” 15. The letter, signed by the Chief Executive, went on to state: “ In light of the ruling by Justice Mugambi, ICS has been entrusted with coordinating and chairing a governance meeting to provide a structured platform for engagement among the relevant stakeholders. As a neutral and professional body, ICS will oversee this process while upholding best practices in governance. To facilitate this process, we propose convening a virtual governance meeting, chaired by an appointed ICS representative. We also request that you share with us articles of association as well as the companies' HR policies prior to the meeting. Kindly propose a suitable date between April 14th and April 17th 2025.” 16. In its subsequent response to the Respondent’s advocates, ICS sought to dispel any perception of secrecy or bias by openly acknowledging that it had already received separate communication from the Applicants’ advocates, on 19th March 2025. ICS’s letter of 17th April 2025 read in part as follows: “ Please note that prior to the receipt of your letter, we had already received a letter from ENS Africa dated March 19th, 2025, relating to the same subject matter, to which you were copied. We addressed the issues raised in our response letter dated April 3rd, 2025, which was duly shared with both ENS Africa and yourselves on April 9th, 2025 via email. Our response, as attached herein for ease of reference, comprehensively addressed the concerns raised, which are substantially similar to those outlined in your correspondence. Please note that the Institute is available through its representative to convene the meeting as per the timelines given in our previous letter.” 17. From the evidence on record, it is apparent that the parties were still engaged in the preliminary stages of arranging the meeting envisaged by this Court. The correspondence produced before me dealt largely with logistical matters such as notices, timelines, and communication protocols rather than with the substantive governance issues directed by the Court. The Applicants have not placed before me any material to show that ICS engaged in deliberations or made decisions with the Respondents touching on the substance of the Orders of 21st February 2025. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/431/eng@2026-01-23 3

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18. On the contrary, the record further shows that ICS was keen to engage both parties in finding a suitable date for the preliminary meeting. It expressly invited the parties to propose suitable dates between 14th and 17th April 2025, even though the correspondence to the Applicants was inadvertently misaddressed. Although the initial meeting of 16th May 2025 was convened on short notice, that lapse too was promptly rectified when the session was rescheduled. 19. More importantly, the Applicants have not disputed the Respondent’s assertion that a preliminary meeting was successfully convened on 20th May 2025. At that meeting, both parties participated and reached consensus on the adoption of a common communication protocol and agreed upon a date for a structured governance meeting. In these circumstances, the allegation of bias or exclusivity cannot be sustained. 20. I am therefore not persuaded that the application has merit. The Applicants have failed to demonstrate any substantive prejudice arising from ICS’s conduct, and the allegations of bias remain speculative and premature in light of the preliminary stage of the engagement. 21. That said, it bears emphasis that Court‑sanctioned alternative dispute resolution (ADR) process is firmly anchored in the constitutional command of Article 159 of the Constitution, which obliges courts to promote settlement of disputes through mechanisms other than litigation. 22. While in this instance the ADR process was instigated by the Court, the parties themselves bear an equal responsibility to cooperate, act in good faith, and to ensure that the process succeeds. A Court‑directed ADR initiative cannot thrive in the face of obstruction or tactical maneuvering by parties who refuse to engage constructively. On 21st February 2025, this Court granted the parties 60 days to resolve the impasse. This period was extended by a further 30 days on 21st May 2025. 23. In the broader context, it must be appreciated that the 1st and 2nd Respondent companies are family‑owned enterprises. Their sustainability and prosperity cannot be secured through perpetual judicial intervention, but rather through the goodwill, cooperation, and collective responsibility of their shareholders and directors. The Court’s role is not to manage the day‑to‑day afiairs of private companies, but to provide a framework within which parties can resolve disputes. (See Tanui & 4 Others v Birech & 11 Others, [1991]KLR and Mokoosio & Another v vadera & 3 Others, [2021] KEHC 56 (KLR)). 24. Additionally, Courts cannot be seen to act in vain by repeatedly entertaining stalemates such as the present one, where parties invoke judicial processes not to advance resolution but to perpetuate dysfunction. Judicial authority must be exercised to facilitate settlement of disputes, not to allow its processes to be abused as instruments of delay or obstruction. 25. It is evident to me that there exists profound mistrust among the directors of the Respondent Companies, and that the channels of communication between them have irretrievably collapsed. The parties have shown that they are unwilling or unable to cooperate in good faith. In the circumstances, they ought to be at liberty to pursue other lawful and practical recourses available under the Companies Act including a buyout/dissolution. Though drastic, it may be the ultimate statutory remedy for shareholders who cannot reconcile their difierences and who have rendered the governance of the enterprise unworkable, considering that the Court cannot impose perpetual supervision. Disposition 26. However, in the spirit of afiording the parties a final opportunity to prove their goodwill, I am prepared to extend a lifeline. Accordingly, I allow a final period of fourteen (14) days within which the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/431/eng@2026-01-23 4

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parties shall, through the facilitation of the ICS, convene a meeting of the Directors of the 1st and 2nd Respondents in compliance with the judgment of 21st February 2025. 27. In the event of non-compliance within this period, the matter shall automatically be deemed as closed, without further recourse to this Court under the present application. Given the nature of the dispute, each party shall bear its own costs. DATED, SIGNED AND DELIvERED AT NAIROBI THIS 23RD DAY OF JANUARY 2026. F. MUGAMBI JUDGE Delivered in presence of: Ms Tanui HB for Mr Amoko for the 3rd & 4th respondents Prof Ojienda for the applicants Court Assistant: Lillian https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/431/eng@2026-01-23 5

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