Businessman and media owner Samuel Kamau Macharia (SK Macharia) has been ordered to wire back Sh400 million withdrawn from Directline Assurance Company Limited.
Justice Alfred Mabeya said the transfer of the funds by Mr Macharia was not only unlawful and illegal, but intended to financially cripple the company.
The judge said the funds should be returned to the bank account where they were withdrawn from.
“This is in order to meet the ends of justice and to secure the interest of the policyholders of the plaintiff and the claimants for compensation,” said the judge.
Justice Mabeya also ordered a forensic audit of the insurer’s books of account, an exercise to be conducted by an interim board within 90 days from the date of the ruling.
The judge said the interim joint board to be constituted would consist of two nominees each of AKM Investments Ltd, Janus Ltd, and Royal Media Services Ltd.
“In view of the foregoing, I am satisfied that not only has the plaintiff established a prima facie case, but has demonstrated that unless the actions of the respondents are reversed and they are restrained as sought, the plaintiff will suffer irreparable loss and damage,” the judge said.
Trouble at the underwriter began when Mr Macharia wrote to the bank to wire Sh400 million from an account belonging to Directline Assurance Company Ltd to a housing firm he owns.
The millions were to be wired to an account belonging to Toy and Suna Holdings, a company owned by Mr Macharia, to finance the development of stalls and low-cost housing at Toy Market in Nairobi.
Ms Terry Wanjiku Wijenje rushed to court arguing that she was a director, founder, and shareholder of the company.
She said although she was approved by the Insurance Regulatory Authority (IRA) to serve as a director and principal officer, her employment was terminated on August 30, 2019, signed by Mr Macharia.
She said the termination was later overturned by the tribunal in a judgment on February 27, 2020.
Ms Wijenje maintained that she holds a 20 percent share in Janus Limited and that she was the majority shareholder and that the dispute at the company arose following the death of John Gichia, Mr Macharia’s son.
She said Mr Macharia, his wife and Royal Credit Limited hold 9.664 percent shares while AKM Investments Limited, Janus Limited, Sure Invest Company Limited, Stenny Investment Pty Limited, and Triad Networks Limited collectively held 90.336 percent shares of the company.
She said Mr Macharia’s takeover involved irregular appointments of additional directors, which was in contravention of the Companies Act.
Ms Wijenje sought orders blocking Mr Macharia and his agents from making any withdrawals, transfers or other transactions that could affect the smooth running of the company.
She asked the court to block the withdrawal of funds from DTB, Equity, and Family banks.
The director said the ownership dispute of the company was referred to arbitration resulting in an award published on June 22, 2022, and an application for recognition and enforcement of this award, as well as for setting it aside, are currently pending before the High Court.
She informed the court that at the time the award was issued, the minority shareholders engaged in illegal actions, including terminating her employment, appointing new CEOs and principal officers, and removing and appointing new directors.
The actions were allegedly reported to the Registrar of Companies, who deemed the resolutions of March 18 and 19, 2020 to be illegal and void.
Mr Atanas Maina opposed the application stating that he was appointed as the insurer’s company secretary and had been working with a board of directors duly appointed by the majority shareholders and approved by the IRA.
He said he has performed his role as company secretary in the best interest of Directline.
The same was supported by Mr Julius Orenge who said Ms Wijenje was not a founder, shareholder, or director of the company.
Mr Orenge said the actual founders were Royal Credit Limited, Mr Macharia, Ms Purity Kamau Macharia, and Dan Karobia.
On its part, the IRA contended that it could not approve any of the directors since the shareholding of the company was in dispute.
Mr Macharia and his agents submitted that the IRA aimed at misleading the court by ignoring the audit of shareholding in the company.
Further, they claimed that the parties had overlooked the findings of an audit that allegedly revealed that AKM Investment Limited had significantly mismanaged the company by siphoning approximately Sh7 billion.
