Manhattan Coffee Investment Holding (in liquidation) (Respondent) v Stephen Mbugua Mwagiru (Appellant) (Mauritius) No 2

Case summary

Case ID

JCPC/2025/0044

Jurisdiction

Mauritius

Parties

Appellant(s)

Stephen Mbugua Mwagiru

Respondent(s)

Manhattan Coffee Investment Holding (In liquidation)

Issue

Did the Court of Appeal err (1) by concluding that the Bankruptcy Division of the Supreme Court of Mauritius lacked jurisdiction to grant leave for the Appellant to continue the Plaint as a derivative claim in the name and on behalf of the Respondent; (2) by holding that the application could not be granted ex parte; and (3) if the application could be granted ex parte, by failing to consider that no prejudice was thereby caused to the Respondent?

Facts

The Appellant is the sole remaining director of the Respondent company. The Respondent is an investment holding company incorporated in Mauritius which is currently in liquidation. The Respondent holds shares in two other investment holding companies (the “Cedar Companies”), which in turn hold substantial investments in Kenya. In 2017, the Respondent filed a plaint in the Supreme Court of Mauritius seeking the annulment of, or alternatively USD 340 million in damages for, the issue of shares in the Cedar Companies which the Respondent alleged was in breach of its statutory pre-emption rights (the “Plaint”). On 15 February 2018, an arbitral tribunal in separate proceedings ordered the Respondent to pay nearly USD 15 million in damages to SCF Holdings II Ltd (“SCF”), another shareholder in the Cedar Companies. The Respondent failed to pay the award debt and, on 20 February 2019, SCF applied to the Supreme Court of Mauritius to wind up the Respondent. Pending the determination of the winding up petition, on 21 February 2019, the Supreme Court of Mauritius appointed Mr Dabee as provisional liquidator of the Respondent, following which the directors of the Respondent ceased to have conduct of the Plaint. On 21 August 2020, the Appellant applied to the Supreme Court of Mauritius under s.170(1)(b) of the Companies Act for an order granting him leave to continue the Plaint in the name and on behalf of the Respondent. That application was withdrawn at a hearing in 2022 because the parties reached a settlement on the conduct of the Plaint (the “2022 Settlement”). On 19 May 2023, the Supreme Court of Mauritius made an order for the winding up of the Respondent and appointed two persons (one of whom being Mr Dabee) as Joint Liquidators (“JL”). On 7 September 2023, at a case management hearing relating to the Plaint, counsel for the JL stated that the JL were not bound by the 2022 Settlement. In November 2023, the Appellant submitted two separate applications. First, on 21 November 2023, the Appellant filed an ex parte application in the Commercial Division of the Supreme Court of Mauritius under section 154(1)(c) of the Insolvency Act seeking leave to continue the Plaint on behalf of the Respondent and an injunction restraining the JL from disposing of the sole assets of the Respondent pending determination of the Plaint. The Commercial Division granted both orders. Secondly, on 28 November 2023, the Appellant filed an inter partes application to the Bankruptcy Division of the Supreme Court of Mauritius under s.170 of the Companies Act and/or s.174 of the Insolvency Act for an order granting him leave to continue the Plaint in the name and on behalf of the Respondent. The Bankruptcy Division granted this application ex parte before the proceedings were served on the Respondent. The Respondent appealed against the orders of both the Commercial and the Bankruptcy Divisions. On 11 December 2024, the Court of Civil Appeal of Mauritius delivered two judgments allowing the appeals and quashing the orders. The Appellant now appeals to His Majesty’s Privy Council.

Date of issue

23 May 2025

Case origin

Appeal As of Right

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