Fatmabai Sherali Esmail v Abdeel Enterprises Limited & 7 others

2. The application is supported by the affidavit of Mona Doshi, a partner in the 4th Defendant firm, sworn on even date. She depones that the allegations made against both herself and the 4th Defendant are false, unsupported by evidence and amount to an abuse of the court process. She avers that the 4th Defendant merely incorporated the 1st Defendant as an off-the-shelf company in 2007 and, upon its sale in April 2009, facilitated the transfer of the company to the 2nd and 3rd Defendants, whereupon its nominee directors resigned and Equatorial Secretaries and Registrars were appointed company secretary. 3. She further states that in 2012 the 4th Defendant acted solely on instructions from the 6th Defendant, African Banking Corporation Limited, to prepare and register a debenture securing the 1st Defendant's borrowing, and in the course of those instructions obtained confirmation from the company secretary that the Plaintiff was already a director and shareholder. According to the deponent, the 4th Defendant neither participated in nor had knowledge of the Plaintiff's alleged appointment as director or shareholder or the transfer of shares to her, and merely relied on documentation and confirmations provided by the relevant parties in the ordinary discharge of its professional duties. 4. Ms. Doshi explicitly denies ever acknowledging or admitting to any fraudulent conduct. She explains that in response to inquiry letters from the Plaintiff’s advocates, she merely confirmed knowledge of the 1st Defendant’s existence while disclaiming any knowledge of the alleged fraudulent inclusion of the Plaintiff as a director or shareholder. She asserts that there are no pleaded particulars linking the 4th Defendant to fraud, making its continued joinder unwarranted, frivolous, and calculated solely to vex the firm. 5. Consequently, she urges the Court to strike out the 4th Defendant and expunge all offending references. In support of these averments, she annexes documentary evidence including notifications of change of directors, transfer correspondence, instructions from the 6th Defendant, confirmation letters from the company secretary, executed corporate documents, and email correspondence. 6. The Plaintiff opposes the application through a Replying Affidavit sworn on 19th April 2026. She depones that the 4th Defendant’s application is misconceived, frivolous, and an abuse of the court process. She contends that the 4th Defendant has failed to demonstrate that the Plaint discloses no reasonable cause of action against it or that the claim is beyond redemption or incapable of being cured by amendment. 7. The Plaintiff further avers that, rather than demonstrating the complete absence of a cause of action, the 4th Defendant has actively responded to the substantive allegations in the Plaint by setting out its own account of disputed facts. She contends that in doing so, the 4th Defendant has conceded the existence of triable issues requiring determination at a full hearing. She submits that the application improperly invites the Court to resolve contested issues of fact on affidavit evidence alone, effectively usurping the function of the trial court prior to discovery, oral testimony, and cross-examination. According to the Plaintiff, the application seeks only to shield the 4th Defendant from trial and ought to be dismissed with costs. 8. The application was canvassed by way of written submissions. The 4th Defendant’s submissions are dated 4th May 2026, while the Plaintiff's submissions are dated 6th May 2026. 4th Defendant's submissions 9. The 4th Defendant submits that it was improperly joined as the Plaint discloses no reasonable or particularized cause of action against it. It argues that the Plaintiff has neither pleaded nor produced evidence linking it to the alleged fraudulent registration or removal of the Plaintiff as a director/ https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12435/eng@2026-07-31 2

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shareholder, or to the impugned credit facilities. Citing Order 1 Rule 10(2) and Order 2 Rule 10 of the Civil Procedure Rules, it contends that a party wrongly joined should not be subjected to the burden and expense of a full trial where no cause of action exists. 10. The 4th Defendant further submits that allegations of fraud must be pleaded with specific particulars, which the Plaintiff has failed to do. It reiterates that its role was strictly limited to incorporating the 1st Defendant in 2007 and to preparing a debenture on the instructions of the 6th Defendant in 2012. It maintains that the Plaintiff has failed to controvert the evidence in Ms. Doshi’s affidavit, relying instead on speculation. The 4th Defendant therefore prays that it be struck out, all offending references expunged, and the application allowed with costs. Plaintiff ’s submissions 11. The Plaintiff submits that the application fails to meet the threshold for striking out a party under Order 1 Rule 10(2). She argues that the 4th Defendant is a necessary party, having admitted its participation in transactions linked to the impugned loan facility. According to the Plaintiff, the legality of the credit facility and the precise degree of each Defendant's involvement can only be completely determined if the 4th Defendant remains a party and its witnesses are subjected to cross-examination. 12. The Plaintiff adds that by advancing a detailed factual defence, the 4th Defendant has demonstrated the presence of triable issues. Relying on DT Dobie & Company (Kenya) Ltd v Muchina & Another [1982] KLR 1, she submits that the power to strike out pleadings or parties is draconian and must be exercised sparingly and only in plain and obvious cases. She urges that the Court should not conduct a trial on affidavits, particularly where any procedural defects in the Plaint can be cured by amendment. She accordingly prays for the dismissal of the Chamber Summons with costs. Analysis and determination 13. 14. I have carefully considered the Chamber Summons, the supporting and replying affidavits, the competing written submissions, and the relevant authorities. The central issues for determination are: i. whether the 4th Defendant has been improperly joined in the suit. ii. whether the suit against the 4th Defendant ought to be struck out, alongside the consequential prayer to expunge references to it and its partner from the record. The application is principally anchored on Order 1 Rule 10(2) of the Civil Procedure Rules which provides: The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. 15. And Order 2, rule 15 (1)(b) and (d) provides: At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that— (b) it is scandalous, frivolous or vexatious; or ...... https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12435/eng@2026-07-31 3

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(d) 16. it is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be. It is trite law that a party is properly joined if their presence is necessary for the effectual and complete determination of all questions in controversy. The importance of parties in proceedings before a court of law cannot be gainsaid. In Apex Finance International Limited & another V Kenya Anti-Corruption Commission [2012] KEHC 2042 (KLR), the court (Emukule J.,) quoted the words of Mukhtar J. of the Supreme Court of Nigeria in Goodwill and Trust Investment Ltd v Will and Bush Ltd [2011] LCN/B820 (SC) as follows: “ It is trite law that to be competent and have jurisdiction over a matter proper parties must be identified before the action can succeed, the parties must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the Court, the Court lacks jurisdiction to hear the suit and where the Court purports to exercise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.” 17. I have reviewed the Plaint. The Plaintiff claims that a coordinated fraudulent scheme led to her being illegally registered as a director and shareholder of the 1st Defendant, putting her at significant financial risk due to credit facilities secured from the 6th Defendant. The Plaint also alleges that the Defendants worked together in executing these questionable transactions. Additionally, the Plaint accuses the 4th Defendant of registering the 1st Defendant. 18. The Court's current focus is not on whether the allegations will ultimately be proven. Instead, it considers whether they are so unfounded that, at this interim stage, the Court can definitively find that there are no genuine issues to be tried against the 4th Defendant. 19. The 4th Defendant does not challenge its role in drafting and registering the debenture over the 1st Defendant’s assets for the 6th Defendant. Ms. Doshi’s account of how those instructions originated, the checks with the company secretary, and the reliance on external documents form the core of the 4th Defendant’s factual defense against the claim. 20. In my view, the explanation offered by the 4th Defendant cannot be said to be such that no triable issue exists. The Plaintiff challenges the integrity of a transaction that requires proper evidentiary testing through discovery, document production, and cross-examination at trial. 21. The claim that the Plaintiff didn't plead fraud specifically under Order 2 Rule 10 is acknowledged, but deficiencies don't make the suit invalid. Pleadings can be amended with court permission. 22. At this interlocutory stage, the Court’s focus is solely on determining whether an arguable dispute exists. Since the 4th Defendant has admitted to being involved in executing key security documentation related to the main dispute, I cannot regard its involvement as entirely irrelevant or unnecessary to the full resolution of the case. 23. Having determined that the role of the 4th Defendant is subject to trial adjudication, it would be premature and inappropriate to exclude segments of the evidentiary record at this stage. 24. Consequently, I find that the Chamber Summons dated 12th August 2024 lacks merit and the same is dismissed. Costs will abide by the outcome of the main suit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12435/eng@2026-07-31 4

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25. These orders to equally apply to HCCOMM E336 of 2024. It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 31ST DAY OF JULY 2026. PETER M. MULWA JUDGE In the presence of: Mr. Hans Oichoe for Plaintiff Mr. Nyamu for 1st, 3rd & 8th Defendants Mr. Mbugua for 2nd Defendant Mr. Sebayiga for 4th Defendant Mr. Kibet h/b for Mr. Gakunga for 6th Defendant Mr. Isinta for 7th Defendant Court Assistant: Lispa https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12435/eng@2026-07-31 5

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