FACTS
John and Jane are the co-owners of Salama Beach Hotel in Watamu; they are both directors. Jane has been living in Paris for 3years but she plans to relocate to Watamu in order to take an active role in managing the hotel. Differences have arisen as John is unable to account for substantial amounts of the hotel’s profits as well as the use of facilities: John has bought a state of the art chopper for himself and opened a new bank account in which he has directed all the company’s profits thereto despite being the only signatory. Following a heated argument; John has ordered his goons to block Jane from entering the hotel’s premises.
The matter is already in court but John intends to cash out and run given the backlog of cases. John was overheard saying that the business would rather go to the ground than share it with Jane who never helped run it; after all, court cases take forever.
You are acting for Jane and she has instructed you to seek relevant orders to secure the property and the profits.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO: 983 OF 2017
JANE MWEREVU MPOLE……………………………………….…….PLAINTIFF
VERSUS
JOHN MJANJA SONKO…………………………………………..…DEFENDANT
CERTIFICATE OF URGENCY
I, WAKILI SMART BIZ, an Advocate of the High Court of Kenya do hereby certify that this application is extremely urgent and should be heard and determined on a priority basis and that this honourable court does appoint a receiver for purposes of taking over the operations of the company Salama Beach Hotel Limited and preserving the assets, records, collecting its dues and do all that appertains to a receiver under the law pending the hearing and determination of the application herein. The defendant has excluded the plaintiff from the affairs of the company in circumstances which afford a reasonable probability that he intends to avoid appearance to this suit and/or to obstruct the execution of any Decree that may be passed against it.
Unless a receiver is appointed, the plaintiff will suffer irreparable loss and damage.
DATED at MOMBASA this ……………………. Day of …………………………… 2017
WAKILI SMART BIZ
ADVOCATES FOR PLAINTIFF/APPLICANT
DRAWN AND FILED BY
FIRM 16 & COMPANY ADVOCATES
JUBILEE INSURANCE BUILDING
SOUTH WING, SUITE 2, 3RD FLOOR
P.O. BOX 40633 -80100
MOMBASA
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO: 983 OF 2017
JANE MWEREVU MPOLE……….……………………………………….PLAINTIFF
VERSUS
JOHN MJANJA SONKO…………………………………………..…..…DEFENDANT
NOTICE OF MOTION
(Under Order 41, Rules 1, 2,3 and 4 of the Civil Procedure Rules, Section 1A, 1B, 3 and 3A of the Civil Procedure Act and all other Enabling Provisions of the Law)
TAKE NOTICE that this court will be moved on the……………day of…………………. 2017 at 8:30 O’clock in the forenoon or so soon thereafter, for the hearing of an application by the Counsel for the plaintiff/applicant FOR ORDERS:-
1. THAT this application be heard ex-parte and as a matter of urgency and service be dispensed with in the first instance.
2. THAT this Honourable Court do issue an injunction prohibiting the defendant whether by himself, servant, agents or any other persons working under his authority from transacting the affairs of Salama Beach Hotel Limited and from operating the Company’s Bank Accounts held at Barclays Bank Limited pending the hearing and determination of this application.
3. THAT this Honourable Court do issue an injunction prohibiting the defendant whether by himself, servant, agents or any other persons working under his authority from transacting the affairs of Salama Beach Hotel Limited and from operating the Company’s Bank Accounts held at Barclays Bank Limited pending the hearing and determination of this suit.
4. THAT this honourable court does appoint an interim receiver for purposes of taking over the operations of the company Salama Beach Hotel Limited and preserving the assets, records, collecting its dues and do all that appertains to a receiver under the law pending the hearing and determination of the petition herein.
5. THAT the costs of this application be awarded against the defendant
WHICH APPLICATION is premised on the following GROUNDS:-
1. THAT the plaintiff and defendant herein are the only directors and shareholders of Salama Beach Hotel Limited.
2. THAT differences have arisen between plaintiff and defendant as to the running of the affairs of the Company.
3. THAT the defendant has excluded the plaintiff from the affairs of the company.
4. THAT the intention of the defendant is in bad faith and calculated to defeat the rights and interests of plaintiff.
5. THAT the defendant is running the affairs of the Company in an oppressive manner and may proceed to plunder and/or hide the assets of the Company.
6. THAT unless the assets of the Company are preserved, the plaintiff will suffer irreparable loss and damage.
7. THAT for the foregoing reasons, there is need to appoint receiver for the preservation of the assets of the Company.
WHICH APPLICATION is supported by the annexed Affidavit JANE MWEREVU MPOLE and on such other and/or further grounds, reasons and arguments as may be adduced or advanced at the hearing hereof.
DATED at Mombasa this day of 2017
FIRM 16 & COMPANY ADVOCATES
ADVOCATES FOR PLAINTIFF/APPLICANT
DRAWN AND FILED BY
FIRM 16 & COMPANY ADVOCATES
JUBILEE INSURANCE BUILDING
SOUTH WING, SUITE 2, 3RD FLOOR
P.O. BOX 40633 - 80100
MOMBASA
TO BE SERVED UPON:
JOHN MJANJA SONKO
P.O BOX 646-80100
MOMBASA
NOTE
If any party served does not appear at the place and time above mentioned, such orders will be made and proceedings taken out as the Court will deem just and expedient.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO: 983 OF 2017
JANE MWEREVU MPOLE………………………………………….…….PLAINTIFF
VERSUS
JOHN MJANJA SONKO……………………………………………..…DEFENDANT
SUPPORTING AFFIDAVIT
I, JANE MWEREVU MPOLE currently residing at Watamu of Post Office Box Number 296, Watamu in the Republic of Kenya do hereby make oath and state as follows:-
1. THAT I am Plaintiff and one of the Directors of Salama Beach Hotel Ltd and hence competent to swear this affidavit.
2. THAT the defendant and I are Directors of Salama Beach Hotel, which company was incorporated on August 8th 2013. Annexed hereto and marked “JMM-1(a)” and “JMM-1(b)” is the CR-12 and the Certificate of Incorporation, respectively.
3. THAT until September, 2016, the defendant was managing the affairs of the Company while I was busy finishing my masters in Paris.
4. THAT differences then arose between the directors due to the following reasons:
a. In 2016, after I came back into the country and decided to take on more responsibilities: I started auditing the accounts and noticed that there was a substantial amount of money that was missing and this was causing the hotel immense losses. On inquiry as to the whereabouts defendant became hostile and an argument ensued.
b. Soon thereafter the defendant forcefully evicted me from the hotel premises and has hired goons that have since prevented my entry to the hotel premises. The defendant still continues to run the affairs of the Company to my exclusion.
5. THAT there is a high likelihood that the defendant will waste, plunder and/or hide the assets of the Company.
6. THAT further considering that there are applications pending in court for this dispute, the defendant has been spending money impulsively and preservation of the assets of the Company is the least he would care to do.
7. THAT the defendant has opened new accounts with Barclays Bank Limited, Malindi Branch wherein he is the only signatory and has directed all the income of the Company thereto; this of course is calculated to defeat my rights and interests in the company.
8. THAT in view of the foregoing reasons, it is only fair that the orders sought herein are granted in order to preserve the assets of the Company since the defendant is no longer banking in the Company’s accounts any monies obtained from the operations of the Company but into an account that I have no control over.
9. THAT I swear this affidavit in support my application herein.
10. THAT what is deponed hereinabove is true to the best of my knowledge save as to the matters deponed to on information sources whereof have been disclosed and matters deponed to on belief whereupon the grounds have been given.
SWORN by the said JANE MWEREVU MPOLE
At Mombasa on the day of 2017
…………………………………..
DEPONENT
BEFORE ME
COMMISSIONER FOR OATHS
DRAWN AND FILED BY
FIRM 16 & COMPANY ADVOCATES
JUBILEE INSURANCE BUILDING
SOUTH WING, SUITE 2, 3RD FLOOR
P.O. BOX 40633
MOMBASA
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