The managing director of Energy and Petroleum Regulatory Authority (Epra), Mr Daniel Kiptoo Bargoria, and his half-brother, Dr Victor Kipkemei Bargoria, are embroiled in a bitter fight for the control of a company founded by their late father four decades ago.
In the matter pending before the High Court at Milimani, Dr Kipkemei is accusing his half-brother of colluding with other shareholders to alter the shareholding of Siokwei Tarita Limited (STL), to his detriment.
Dr Kipkemei, a medic, scored the first win recently when Justice Peter Mulwa declined to strike out the case filed two years ago or lift an order stopping changes in the company’s structure.
“I am not convinced that the Applicants (Mr Kiptoo and others) have met the threshold for setting aside the ex-parte orders,” Justice Mulwa said.
Evidence tabled in court showed that STL, a real estate company that owns a commercial building in Eldoret town, was formed in 1984 by Mr Bargoria, who died on November 14, 2020, and his second wife, Rebecca. The two were the only shareholders and directors.
Another company, Tarita Trocadero Limited, was incorporated in 2019 as a special purpose and is a wholly-owned subsidiary of STL. STL holds 1,000 shares in the second firm.
Dr Kipkemei filed an application in April 2024 seeking orders restraining Mr Kiptoo and others from removing him as a director of STL.
The court issued temporary orders, but they were discharged on May 8, forcing him to head back to court and have the order reinstated.
Granting the orders, Justice Mulwa noted that Dr Kipkemei’s claim against his half-brother was the alleged fraudulent allotment of shares and appointment of directors, among other accusations.
Dr Kipkemei is seeking to quash the changes in shareholding and directorship in STL after March 2016 and a rectification made at the Registrar of Companies.
He is also seeking injunctions restraining Mr Kiptoo and others from making further changes in the company and operating the company’s five bank accounts.
He claims that at incorporation, their late father held 900 shares while his second wife, a defendant in the case, held 100 shares. Subsequently, he and another brother, Daniel Kimutai, were allegedly incorporated as directors.
Dr Kipkemei claims that Mr Kiptoo started filing the company’s returns purporting to change the company’s structure to include himself through “fraudulent” minutes of a meeting allegedly held on February 2, 2011 approving the allotment of 800 shares.
He also alleges that after the demise of their father, Mr Kiptoo and Rebecca purported to sign a resolution to be the sole signatories of the company’s accounts at Bank of Africa, in a meeting purportedly held on November 30, 2020 when the family was still mourning.
Dr Kipkemei added after conducting investigations, the Registrar of Companies allegedly confirmed through a letter November 23, 2021 that the decision to appoint the three directors and allot shares to Mr Kiptoo was regular.
He further accuses the half-brother of forging their father’s signature purporting that he had been allotted 800 shares in 2011 when, in fact, the changes were made after 2016.
He accused him of manipulating records at the Companies Registry with the connivance of its officers to effect the fraudulent scheme to change the shareholding and directorship of STL and TTL with the intended result of diluting his shareholding.
He added that Mr Kiptoo was exposing STL and TTL by making unauthorised borrowing from the bank without his involvement and to the detriment of the companies.
Dr Kipkemei sought an injunction blocking the withdrawal of any funds from the bank accounts, other than for settling existing liabilities or charging the properties in Eldoret.
On his part, Mr Kiptoo said STL was incorporated on April 8, 2004 with a share capital of Sh1 million comprising 1,000 ordinary shares of Sh100 each.
He said his late father and Rebecca held 100 shares each, leaving 800 shares un-allotted. At the time, Bob Harry Mosi was the Company Secretary.
Mr Kiptoo alleged that in a meeting held on February 2, 2011, his father and Rebecca passed a resolution allotting him 800 shares and also appointed as a director of STL.
He added that they also appointed another company secretary in place of Bob Harry Mosi. He said the Companies Registry was duly notified of the changes by the filing of FORM 203A.
A return of allotment form was also filed confirming that he was allegedly allotted 800 ordinary shares.
Based on the changes, the shareholding of STL comprised the estate of Mr Bargoria (100 shares), Mr Kiptoo (800 shares) and Rebecca 100 shares.
Mr Kiptoo said Mr Kimutai and Dr Kipkemei do not hold any shares but are directors. The court heard that the changes were to facilitate the development of a property in Eldoret, which belonged to their late father and was transferred to STL.
Mr Kiptoo added that TTL was incorporated on November 12, 2019 with a share capital of Sh100,000, comprising 1,000 ordinary shares of Sh100 shares each.
He added that all the 1000 shares are held by STL while their late father and himself were the directors, a position that remains the same.
Justice Mulwa directed the case to be mentioned on January 27, 2025 but Mr Kiptoo, through his lawyers, wrote to the court asking for an earlier hearing date. He claimed that the orders were stalling a capital injection of more than Sh3 billion to the company.
“Any delay in hearing and determination of the suit and apportionment application is prejudicial to the applicants as they stand to suffer irreparable harm should the investors willing to inject capital in the company change their mind,” the letter to the Deputy Registrar of the High Court said.
