Eric Mugendi M’barine, Michael T. Maina & Wallace Mugendi Murungi v Anthony Muriithi M’barine & Marine Power Generation Limited [2020] KEHC 6223 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI COMMERCIAL & TAX DIVISION

IN THE MATTER OF RURAL URBAN CREDIT FINANCE LIMITED

WINDING UP PETITION NO. 32 OF 2014

IN THE MATTER OF: MARINE POWER GENERATION COMPANY LTD

IN THE MATTER OF:  THE COMPANIES ACT – SECTIONS 219F AND 211

ERIC MUGENDI M’BARINE..................................................1ST PETITIONER

MICHAEL T. MAINA..............................................................2ND PETITIONER

WALLACE MUGENDI MURUNGI.......................................3RD PETITIONER

-VERSUS-

ANTHONY MURIITHI M’BARINE............................................RESPONDENT

MARINE POWER GENERATION LIMITED......NOMINAL RESPONDENT

R U L I N G

1. ERIC MUGENDI M’BARINE, MICHAEL T. MAINA AND WALLACE MUGENDI M’BARINE, collectively referred to as the petitioners filed this petition on 12th July 2014.  They allege, by this petition that the respondent, ANTHONY MURIITHI M’BARINE has engaged in conduct which is oppressive to the petitioner, in the running of the company.  What is before me is a Notice of Motion application dated 25th July 2019filed by the nominal respondent, MARINE POWER GENERATION LIMITED.  By that application the nominal respondent seeks the striking out of this petition.  That prayer is based inter alia on the following grounds:

1. This matter was last in court for a mention for directions and fixing of a hearing date on 18th October 2017, when the petitioner failed to make appearance.

2. The petitioners thereafter filed a Notice of Change of Advocate dated 19th February 2018, wherein the firm of Gichuki King’ara & Company Advocates came on record for the petitioners.

3. That ever since the firm of Gichuki King’ara & Co. Advocates came on record for the petitioners on 19th February 2018, the petitioners have taken a back seat and no attempt to prosecute this suit has been made or step taken by the petitioners for a period exceeding 1 year since it was last in court.

4. The previous Advocates by (sic) the petitioners further failed to set down the matter for hearing since it was filed in court in 2014.  The matter has thus been in court for last 5 years without the petitioners taking any action to prosecute the matter.

5. The delay in prosecuting the matter for over 4 years is inordinate and inexcusable on the part of the petitioner.

6. It is apparent that the petitioners are no longer interested in the suit and the same only remains an unnecessary burden on the Nominal Respondent.

2. I have considered the affidavit evidence and the submissions.  It is trite that a court will strike out a case where there has been prolonged inordinate and unexplained delay.  Is that the case here?

3. I beg to differ with the applicant’s summary of the activities in this case.  I will try to set out what action was taken, in this matter since the court’s Ruling of 15th June 2016, byJustice Ochieng.

4. By that Ruling the learned judge directed the parties to address the court further to enable the court to give directions as to who the bona fide directors of the company were.  Parties were therefore invited by the learned judge to file further affidavits on this issue.  From 27th June 2016 to 20th March 2017 the court granted the parties adjournment to enable the parties file their necessary affidavits for the determination of the issue identified by the learned judge.  However since parties were not agreed on whether the deponents of affidavits would be cross examined on 3rd April 2017 the learned judge made the following order:

“The court reiterates that the case would proceed to full trial”.

5. The matter was adjourned to 26th April 2017 for directions on the hearing and on that date a further date for directions was fixed for 26th April 2017.  On that date the court did not sit and on 20th September 2017 when, because the petitioners failed to attend court the matter was fixed for mention, by the learned judge, for 18th October 2017.  The court did not sit on that date.  On 24th April 2018, because the learned judge was due to go on transfer the matter was listed before the deputy registrar who fixed a mention on 29th May 2018. No party appeared in court on that date.

6. From the above it will be seen that upto the year 2018 parties appeared before court from time to time.  The petitioners are not entirely to blame for the non prosecution of this petition.  It is for that reason I decline to accede to the application.  I do however find that it is not healthy for a company to have a pending litigation, one as serious as this one of winding up of the company, outstanding for too long.  It is for that reason I will give directions in this matter, on the hearing of the petition.  However to ensure the matter is expedited I will give a time limit within which petition must be heard.

CONCLUSION

I grant the following orders:

(a) The Notice of Motion dated 25th July 2019 is dismissed with no orders as to costs.

(b) The petition shall be heard by both oral and affidavit evidence on a date to be fixed at the reading of this ruling.

(c) If this petition is not heard and concluded by 31st July 2020 this petition will stand as dismissed for want of prosecution.  In the event it is so dismissed the costs of the petition shall be awarded to the respondents.

It is so ordered.

DATED, SIGNED and DELIVERED at NAIROBI this27thday of APRIL,2020.

MARY KASANGO

JUDGE

ORDER

In view of the measures restricting court operations due to the COVID-19 pandemic and in light of the Gazette Notice No 3137 of 17th April 2020 and further parties having been notified of the virtual delivery of this decision, this decision is hereby virtually delivered this 27th day of April, 2020

MARY KASANGO

JUDGE