Vatavi Limited v Patrizia Varani & 6 others

otherwise pending the hearing and determination of the instant application and the suit. They equally seek orders restraining the 3 rd, 4th, 5th and 6th Respondents or anyone acting under their instructions from processing, registering or issuing any titles arising from LR NO. 1705/16 or its resultant titles emanating from its subdivision. Finally, that this Court be pleased to suspend/nullify all approvals issued in respect of the suit property pending the determination of this suit. 2. The Application is predicated upon the Affidavit sworn by Sofia Vigano, the Applicant’s sole director. The Applicant asserts that it is the duly registered proprietor of Land Title No. 1705/16 Kilifi (hereinafter “the suit property”). In substantiation of its claim, the Applicant has exhibited a CR12 dated 8th January 2026, which it contends conclusively demonstrates that the 1 st Respondent has never, at any material time, held office as a director or officer of the Applicant. It is further averred that the 1 st Respondent is a beneficiary of the Estate of the late Sergio Varani, who held 50% of the Applicant’s issued share capital, which interest is purportedly pending transmission to her in her capacity as beneficiary of the deceased’s estate. 3. The Applicant’s gravamen is that the 1 st and 2nd Respondents procured and relied upon a fraudulent and purportedly forged CR12, falsely holding out the 1st Respondent as a director of the Applicant, and thereafter invoked the same as the basis upon which to procure the subdivision of the suit property in concert with the 2 nd to 6th Respondents. The Applicant maintains that no valid corporate resolution was ever sanctioned authorizing, approving or otherwise permitting the subdivision or alienation of the suit property. Notwithstanding the foregoing, it is alleged that the 2 nd to 6th Respondents proceeded with the subdivision without undertaking the requisite verification of the authenticity, provenance or legal efficacy of MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 2 of 9

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the impugned CR12. The Applicant further avers that the 1 st and 2nd Respondents have embarked upon acts of physical occupation and development of the suit property, including the erection of a perimeter wall thereon. intervention The of Applicant this Court, is apprehensive that, absent the the Respondents will proceed to consummate the subdivision and alienate the resultant parcels to third parties, thereby creating third-party interests and materially complicating, if not altogether defeating, the Applicant’s proprietary claim to the suit property. 4. The 1st Respondent opposed the Application through a Replying Affidavit sworn on 19th May 2026 and a further affidavit dated 21 st September 2026. She deposes that she is a daughter of the late Sergio Varani, who, by virtue of the Company’s Articles of Association, held 50% of its issued share capital. Following his demise, she petitioned for and obtained a Grant of Probate in Kilifi Succession Cause No. E004 of 2021, pursuant to which the deceased’s 50% shareholding was transmitted to her under the Certificate of Confirmation of Grant dated 28th October 2021. She consequently asserts an entitlement to 50% of the Company’s shareholding. She further contends that no corporate resolution was passed with her concurrence or authority sanctioning the institution of the present proceedings. 5. The 1st Respondent further challenges the validity of the Company’s Articles of Association, contending that they were purportedly amended in 2021 without the consent or signature of Sergio Varani, notwithstanding his 50% shareholding. She asserts that the Company Secretary subsequently acknowledged this irregularity in writing on 2 nd April 2026. It is further alleged that Piera Bedin, Sofia Vigano’s mother and holder of the remaining 50% shareholding, failed to give effect to the decree arising from the judgment of Hon. Charles Obulutsa, Chief Magistrate, in Kilifi Civil Suit No. E038 of 2022, delivered on 18th MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 3 of 9

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December 2025, which allegedly deceased’s 50% shareholding to required the transfer of the the Respondent. The 1st 1st Respondent states that a complaint was consequently lodged with the Institute of Certified Secretaries concerning the alleged fraudulent alteration of the Company’s Articles of Association, and that investigations against the Company Secretary remain pending. In her further affidavit she has annexed a copy of another CR12 dated 31/7/2026 showing that she has been included as a shareholder with 50% shareholding in the plaintiff company. 6. As regards the impugned subdivision, the 1st Respondent maintains that the same was not a recent or unilateral undertaking, but traces its genesis to an arrangement between the Company’s founders, Sergio Varani and Enrico Vigano, embodied in a Preliminary Letter of Intent dated 8th February 2008. She contends that the said instrument contemplated the division of the suit property into 2 distinct and independently identifiable zones, as reflected in purported drawings demarcating the respective areas in blue and red, with the red zone being designated to Sergio Varani. I have not seen any such annextures to either her first affidavit or further affidavit. She consequently denies the Applicant’s allegation that she has undertaken any recent development or physical works upon the suit property. 7. The 2nd Respondent, in his Affidavit sworn on 25th May 2026, states that he undertook the survey and subdivision of the suit property upon the instructions of the 1st Respondent, who furnished him with the Indenture Title, Certificate of Confirmation of Grant and a Clearance Certificate issued by the County Government of Kilifi for purposes of facilitating the subdivision. He further explains that the title had been converted into a 99-year lease on account of the Company’s foreign ownership. According to the 2nd Respondent, several site visits were MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 4 of 9

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undertaken in the course of the surveying exercise, during which the survey team was never denied access to the suit property. 8. Significantly, the Applicant elected not to file any further affidavit in rebuttal of the factual assertions and documentary evidence placed before the Court by the 1st and 2nd Respondents. The Court therefore has before it the uncontroverted evidentiary material contained in the respective affidavits, alongside the rival written submissions filed by the parties, which it has duly considered. 9. The primary issue for consideration, therefore, is whether the Applicant has met the requisite threshold for the grant of interim orders of injunction. The first criterion is whether the Applicant has established a prima facie case. In Nguruman Limited v Nielsen & 2 others [2014] KECA 606 (KLR) observed that: “30. “Prima facie” is a Latin phrase for “at first sight”, whose legal meaning and application has been the subject of varying interpretation by courts in many jurisdictions. Phrases like “a serious question to be tried”, “a question which is not vexatious or frivolous”, “an arguable case” have been adopted to describe the burden imposed on the applicant to demonstrate the existence of prima facie case. The leading English House of Lords case of the American Cyanamid Co. Ethicon Ltd [1975] AC 396 is a case in point. The meaning of “prima facie case”, in our view, should not be too much stretched to land in the loss of real purpose. The standard of prima facie case has been applied in this jurisdiction for over 55 years, at least in criminal cases, since the decision in Ramanlal Trambaklal Hatt V. Republic [1957] E.A. 332. 31.Recently, this court in Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others [2003] KLR 125 fashioned a definition for “prima facie case” in civil cases in the following words: MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 5 of 9

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“In civil cases, a prima facie case is a case in which on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party to call for an explanation or rebuttal from the latter. A prima facie case is more than an arguable case. It is not sufficient to raise issues but the evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard, which is higher than an arguable case.” 32.We adopt that definition save to add the following conditions by way of explaining it. The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that, on the face of it the person applying for an injunction has a right which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than that MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 6 of 9

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the Court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.” 10. In the instant case, the Applicant’s case is principally predicated upon the contention that the 1st Respondent, while falsely holding herself out as a director of the Applicant and relying upon a purportedly forged CR12, proceeded to initiate and facilitate the subdivision of the suit property without any corporate authority or sanction. The 1st Respondent, however, has placed before the Court a Certificate of Confirmation of Grant evidencing the transmission to her of the 50% shareholding in the Applicant Company formerly held by the late Sergio Varani. 11. I note that, at paragraph 20 of her Affidavit, the 1 st Respondent expressly acknowledges that the CR12 exhibited by the Applicant was utilized in the process of subdivision. Her explanation, however, is that she did not know about any inaccuracies or irregularities therein at the material time, the document having been furnished to her by an official of the Business Registration Service. The 1 st Respondent further contends that Sofia Vigano, Piera Bedin, who holds the other 50% shareholding, and the 3rd Respondent are in contempt of court for their alleged failure to effect the transfer of her 50% shareholding inherited from the late Sergio Varani. In support thereof, she has exhibited a contempt application dated 10th April 2026 filed in Kilifi Civil Suit No. E038 of 2022, namely Patrizia Varani (Suing as the Administratrix of the Estate of Sergio Varani (Deceased) v Piera Bedin, Sofia Vigano and Equatorial Secretaries. These averments and the accompanying documentary evidence have not been controverted by the Applicant. The Certificate of Confirmation of Grant, on its face, confirms the 1 st Respondent’s entitlement to 50% of the Applicant Company’s shareholding. Further, the Preliminary Letter of Intent dated 8 th February 2008, executed by the late Sergio Varani and Mr. Enrico MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 7 of 9

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Vigano, indicates that the Company’s original equal shareholders had agreed to the division of the suit property into 2 distinct and independent zones, subject to the terms stipulated therein. In the circumstances, the Applicant’s contention that the 1st Respondent has no proprietary or shareholder interest in the Company is not borne out by the evidentiary record presently before the Court. I am therefore not persuaded that the Applicant has established a prima facie case warranting the grant of an interlocutory injunction. 12. The second limb of the applicable test requires the Applicant to demonstrate that, absent an injunction, it is likely to suffer irreparable injury which cannot adequately be compensated by an award of damages. As was underscored in Nguruman (supra), the Applicant bears the evidential burden of demonstrating the nature and extent of the apprehended injury. The Court will not act upon injury founded merely upon conjecture, speculation, fear or apprehension. In the present case, however, the Applicant has placed before the Court evidence that the suit property, being L.R. No. 1705/16 Bofa, Kilifi County, has been subdivided into Parcels Nos. 272 and 273, each measuring approximately 1.356 hectares. The Applicant has further exhibited photographs depicting beacons erected upon the suit property in furtherance of the subdivision. It is also the Applicant’s case that the 1st Respondent has commenced the erection of a perimeter wall with the object of delineating and securing the allegedly irregularly subdivided portion, thereby interfering with the Applicant’s quiet possession and occupation of the suit property. The Applicant further apprehends that the resultant subdivisions may be transferred to third parties, thereby occasioning it substantial and potentially irreparable prejudice. 13. Notwithstanding the finding on the first limb, the Court must take cognizance of the undisputed fact that the suit property has already MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 8 of 9

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undergone subdivision and beaconing, against a backdrop of a substantive controversy as to whether the process was undertaken pursuant to valid corporate authority. In my view, allowing the subdivision and any consequential dealings with the resultant parcels to proceed pending the determination of that controversy would materially alter the substratum of the dispute and expose the Applicant to prejudice incapable of being adequately remedied by an award of damages. The 1st Respondent, for her part, has denied undertaking any recent unlawful construction or other development upon the suit property. 14. Accordingly, and in order to preserve the subject matter of the suit and forestall any further dealings that may prejudice the ultimate determination of the parties’ respective rights, this Court hereby issues orders of status quo prevailing in respect of the suit property and the resultant subdivisions pending the hearing and final determination of the suit. The costs of the Application shall abide the outcome of the suit. This suit shall be mentioned on 26th November 2026 to confirm compliance with the rules and to take a hearing date for the main suit. Dated, Signed, And Delivered at Malindi on This 6th Day of October 2026 HON JUSTICE MWANGI NJOROGE JUDGE ENVIRONMENT AND LAND COURT, MALINDI MLDELCLCE023/26-RLG/DF-20.02.26/FH-26.05.26/LH-26.05.26/DR-06.10.26 Page 9 of 9

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