Ibrahim & 3 others v African Express Airways Limited & 5 others

HCCOMM NO. E006 OF 2025 P. MULWA, J. 2026, by the Plaintiffs, the applications dated 3 rd February 2026, and 19th January 2026 both by the 1st Defendant. Application amended on 19th January 2026 2. The amended application is brought under Order 8, rule 1(3) (5) & (8), Orders 40 and 51 of the Civil Procedure Rules, Sections 3A, 63 (c) and 100 of the Civil Procedure Act. The Applicant seeks the following orders: i. An order seeking to cite Ahmed Rashid Jibril, the 1st Defendant’s Director for contempt of the court orders issued on 10th January 2025, ii. An order that Ahmed Rashid be arrested and committed to civil jail, iii. An order directing the Registrar of Companies, the 2nd Interested Party to immediately reinstate the 1st Defendant’s shareholding as at 20th December 2024. iv. Costs be borne by the Respondents. 3. The application is supported by the annexed affidavit of Warsame Dore. He deposes that the directors of the 1 st Defendant have blatantly disobeyed the court orders of 10 th January 2025, by restructuring the shareholding of the 1 st Defendant as evidenced by the CR12 dated 4th December 2025. The orders of 10th January 2025 were duly served on the Defendants and despite knowledge of the court orders, the Defendants have continued to interfere with the Plaintiff's shareholding and directorship. Page 2 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. 4. The 1st Defendant opposed the application through the replying and further affidavits of Ahmed Rashid Jibril sworn on 23rd January 2026 respectively. He deposed that if the court grants the prayer to reinstate the 1 st Defendant's shareholding, it will amount to condemning the 1 st Defendant unheard and violating the constitutional rights of the 1 st Defendant’s directors. The plaintiff cited the company but failed to cite the directors of the company. Application dated 3rd February 2026 5. The application is brought under Order 8 Rule 3(2), (4), (5) and Order 8 Rule 7 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 100 of the Civil Procedure Act. The 1 st Defendant seeks leave to amend the defence and file a counterclaim. 6. The application is supported by the annexed affidavit of Ahmed Rashid Jibril, the director of the 1 st Defendant. He deposed that new and compelling information has come to his attention that would support filing a counterclaim against the Plaintiff’s case. The amendments do not introduce a new or inconsistent cause of action. He contends the plaintiff will suffer no prejudice. 7. The 1st Plaintiff opposes the application by the replying affidavit sworn on 17th April 2026. He avers that the 1 st Defendant has no case against the Plaintiff, that the instant application is an afterthought made in bad faith, and that the amount claimed in the counterclaim is the amount the Defendants have been charged by their advocates. He contends that the proposed amendments introduce new Page 3 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. facts and an inconsistent cause of action, and that allowing them at this stage will result in undue delay, procedural injustice, and prejudice to the Plaintiffs. Application dated 19th January 2026 8. The Application is filed under Sections 1A, 1B, and 3A of the Civil Procedure Act, as well as Order 26 Rules 1 and Order 51 of the Civil Procedure Rules. The Applicant seeks that the Court compels the Plaintiffs to deposit Kshs. 20 Million within 30 days as security to cover the 1 st Defendant's costs. If the Plaintiffs fail to comply, the suit should be dismissed with costs, and all further proceedings should be stayed until the security is deposited. 9. The application is supported by the grounds on the record's face and an annexed affidavit from Ahmed Rashid Jibril, the 1st Defendant's director. He states that the Plaintiff filed this suit with a plaint dated 2nd January 2025, demanding USD 1,335,481 for alleged breach of a contract with the 1 st Defendant. He argues the claim is frivolous, based on an unauthorized loan between the Plaintiffs and Captain Musa Hassan Bulhan. According to the CR12, the 1 st and 2nd Plaintiffs are foreigners and shareholders of the 4 th Plaintiff, with no identifiable property within Kenya that can be attached or removed. Therefore, if the 1 st Defendant wins, recovering costs will pose significant difficulties. 10. The 1st Plaintiff opposes the application, filing a replying affidavit sworn on 23rd February 2026. He states that the claim pertains to the 1st Defendant, not Musa Hassa Bulhan Page 4 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. as alleged. The application is unfounded and constitutes an abuse of court process. He explains that the 1 st Defendant allocated 2,000 shares each to the 1 st, 2nd, and 3rd Plaintiffs, who were supposed to be included in the company’s shareholding. However, the 1st Defendant has not made the necessary changes in directorship and shareholding despite receiving USD 755,000 from the Plaintiffs. He adds that the 3rd Plaintiff is Kenyan, and the 4 th Plaintiff is a company incorporated and operating in Kenya, which is known to the 1st Defendant. The 1st and 2nd Plaintiffs are domiciled in Kenya and hold work permits. The application appears to be a delay tactic, with no evidence proving the Plaintiffs are winding up the company or disposing of assets. 11. He further contends that the orders for security of Kshs. 20 million are unreasonable because they impede the Plaintiffs' access to justice; that the actions of the 1 st Defendant are intended to frustrate the Plaintiffs from pursuing their legitimate and bona fide claim. 12. The applications were heard together by way of written submissions. Analysis and determination 13. I have carefully considered the three applications, the affidavits in support and in opposition thereto, together with the written submissions filed by the parties. In my view, the issues falling for determination are:: i. Whether Ahmed Rashid Jibril should be cited and committed for contempt of the court orders issued on 10 th Page 5 of 13

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HCCOMM NO. E006 OF 2025 January 2025, P. MULWA, J. and whether mandatory orders of reinstatement should issue. ii. Whether the 1st Defendant should be granted leave to amend its Defence and file a Counterclaim. iii. Whether the Plaintiffs should be ordered to provide security for costs in the sum of Kshs. 20 million. Whether the Plaintiffs have established contempt of court 14. It is trite in law that for a party to be found in contempt, the Applicant must establish that: (i) there exists a valid court order or decree; (ii) the same was extracted and served upon the alleged contemnor together with a penal notice; and (iii) there has been deliberate disobedience of the said order. 15. The Court of Appeal in Katsuri Limited v Kapurchand Depar Shah [2016] eKLR, emphasized that: “The law on contempt is settled. To succeed in an application for contempt, the applicant must demonstrate the existence of an order capable of being disobeyed, knowledge of the order by the respondent, and deliberate disobedience of the order.” 16. The Plaintiffs allege that the orders of 10 th January 2025 were disobeyed by the of restructuring of the 1 st Defendant's Page 6 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. shareholding as evidenced by the CR12 dated 4 th December 2025. 17. For the Court to sustain contempt proceedings, it must be satisfied that the alleged contemnor had personal knowledge of the court order. In the instant case, no clear evidence of personal service on Ahmed Rashid Jibril has been placed before the Court, notwithstanding the Plaintiffs' averments that the orders were duly served on the Defendants. 18. The Court in the Katsuri Limited case (supra) emphasized that contempt proceedings are quasi-criminal in nature and the standard of proof is beyond reasonable doubt. The Plaintiffs have not met this stringent standard. 19. The mere production of a CR12 showing a change in shareholding does not, without more, establish deliberate disobedience of the court order. 20. The alleged acts complained of relate to corporate decisions made by the 1st Defendant. Although directors may, in appropriate circumstances, be held personally liable for contempt committed by a company, such liability is not automatic. The Court must be satisfied that the particular director was personally responsible for, authorized, or participated in the disobedience complained of. 21. The Respondent has argued that the Plaintiffs cited the company but failed to properly join or cite the directors against whom adverse orders affecting their personal liberty are sought. Contempt proceedings, given their penal Page 7 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. consequences, demand strict procedural compliance and observance of the rules of natural justice. 22. While the Plaintiffs rely on the CR12 dated 4th December 2025 to demonstrate changes in the shareholding, the orders sought go beyond punishment for contempt. The prayer requiring the Registrar of Companies to immediately substantially reinstate determines the company's contested shareholding proprietary and corporate rights, which remain central issues in the pending suit. 23. The Court is unable, within interlocutory contempt proceedings, to conclusively determine disputed questions relating to ownership of shares and directorship before hearing evidence at the trial. Such orders would effectively grant substantive final relief before determination of the suit. 24. Moreover, the material before Court is insufficient to establish, to the requisite standard applicable in contempt proceedings, that Ahmed Rashid Jibril personally and deliberately disobeyed the orders of 10 th January 2025 so as to justify his committal to civil jail. 25. Consequently, I find that the Plaintiffs have failed to establish the threshold for contempt. The application dated 19th December 2025, as amended on 19 th January 2026, is therefore without merit. Whether leave should be granted to amend the defence and introduce a counterclaim Page 8 of 13

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HCCOMM NO. E006 OF 2025 26. P. MULWA, J. The 1st Defendant seeks leave to amend its defence so as to introduce a counterclaim founded upon information allegedly discovered after filing the original defence. 27. Order 8 Rule 3(1) of the Civil Procedure Rules provides that: “The court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.” 28. Amendments should be freely allowed provided they are made in good faith, do not occasion injustice incapable of compensation by costs, and are necessary for determining the real issues between the parties. (See Court of Appeal in Central Kenya Ltd v Trust Bank Ltd & 5 Others [2000] eKLR). 29. This Court has considered the proposed amendments. The 1st Defendant seeks to introduce a counterclaim arising from what it describes as "new and compelling information." The amendments are said to arise from the same transaction or subject matter as the Plaintiffs' claim. The Court does not find that the proposed amendments introduce a wholly new or inconsistent cause of action. 30. The Plaintiffs' contention that the application is an afterthought and made in bad faith is not borne out by the evidence. The 1st Defendant has provided an explanation for the delay, and the amendments are sought before the Page 9 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. matter has proceeded to full hearing. The Plaintiffs have not demonstrated that they will suffer prejudice that cannot be compensated by an award of costs, or be cured by granting them corresponding leave to amend their pleadings and respond to the counterclaim. 31. In the premises, the Court exercises its discretion in favour of granting leave to amend. The application dated 3 rd February 2026 is hereby allowed. Whether the Plaintiffs should furnish security for costs 32. Order 26 Rule 1 of the Civil Procedure Rules provides: "In any suit the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party.” 33. The law is settled that an order for security for costs is discretionary and must be exercised judicially. In Keary Developments Ltd v Tarmac Construction Ltd [1995] 3 All ER 534, the Court observed that security for costs should not be ordered merely because a plaintiff resides outside the jurisdiction. The Court must balance the defendant's right to recover costs against the plaintiff's constitutional right of access to justice. 34. The same principle has been adopted by Kenyan courts including Shah v Shah [1982] KLR 95, where it was held Page 10 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. that the discretion must be exercised reasonably and not in a manner that unjustly shuts out a litigant from the seat of justice. 35. The burden rests upon the applicant to demonstrate that there is a real risk that, if successful, recovery of costs will be impossible or substantially impeded. 36. In the present case, the 1st Defendant has alleged that the 1st and 2nd Plaintiffs are foreigners and that the Plaintiffs have no known attachable assets in Kenya. However, the Plaintiffs have countered by asserting that the 3 rd Plaintiff is a Kenyan, the 4th Plaintiff is a company incorporated in Kenya, and that the 1st and 2nd Plaintiffs are domiciled in Kenya and hold work permits. 37. Beyond these assertions, the Defendant has not placed before the Court any evidence demonstrating that the Plaintiffs have no assets within Kenya, are disposing of their property, intend to leave the jurisdiction, or are otherwise incapable of satisfying an order for costs. 38. Mere foreign nationality does not, without more, justify an order for security for costs. Such an order cannot issue on speculation. 39. Furthermore, the Court is mindful that an order for security for costs must not be used as a tool to stifle access to justice. The Plaintiffs have a bona fide claim which they seek to pursue. To require them to deposit Kshs. 20 million as security would, in the Court's view, be oppressive and would impede their access to justice. Page 11 of 13

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HCCOMM NO. E006 OF 2025 40. P. MULWA, J. In the premises, the application for security for costs fails and is hereby dismissed with costs to the Plaintiffs Disposition 41. Consequently, the Court makes the following orders: i. The Plaintiffs' amended application dated 19th January 2026 seeking orders for contempt is dismissed with costs. ii. The 1st Defendant's application dated 3rd February 2026 seeking leave to amend its statement of defence and file a counterclaim is allowed. iii. The amended defence and counterclaim shall be filed and served within seven (7) days from the date hereof. iv. The Plaintiffs shall have corresponding leave to file and serve a defence to the counterclaim and, if necessary, an amended plaint within fourteen (14) days of service. v. The 1st Defendant's application dated 19th January 2026 seeking security for costs is dismissed with costs. vi. The suit shall thereafter be set down for pretrial directions on a priority basis. It is so ordered. RULING delivered virtually, dated and signed at NAIROBI Page 12 of 13

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HCCOMM NO. E006 OF 2025 P. MULWA, J. This 13th day of August 2026. PETER M. MULWA JUDGE In the presence of: Mr. Lakicha, SC for Plaintiff Mr. Biriq for 1st Defendant Court Assistant: Sharon Page 13 of 13

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