Kariuki Njoroge Mutegi Karega, Samuel Ngugi Nganga, John Kamau Kanjigi, Kiambu Dandora Farmers Co. Ltd Vs Stephen Mugo Mutothori , Raymond Mwangi Waweru, Peter Karumbi Keingati [2004] KEHC 895 (KLR)
Full Case Text
REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI
CIVIL CASE NO. 609 OF 2004
KARIUKI NJOROGE …………………………………. 1ST PLAINTIFF
MUTEGI KAREGA…………………………………….. 2ND PLAINTIFF
SAMUEL NGUGI NGANGA…………………………. 3RD PLAINTIFF
JOHN KAMAU KANJIGI…………………………… 4TH PLAINTIFF
KIAMBU DANDORA FARMERS CO. LTD………… 5TH PLAINTIFF
VERSUS
STEPHEN MUGO MUTOTHORI …………………. 1ST DEFENDANT
RAYMOND MWANGI WAWERU…………………. 2ND DEFENDANT
PETER KARUMBI KEINGATI……………………. 3RD DEFENDANT
RULING
The 5th Defendant Company Kiambu Dandora Farmers Co. Ltd. has filed this applicationseeking an
order of the Court to strike its name from these proceedings. It contends that it has been improperly joined in
the suit which suit has been instituted without authority, by way of resolution against certain of its directors
who happen also to be trustees of the 5th Defendants assets. The 5th Defendant applicant also contends that
there would be a conflict of interest if the suit is allowed to continue as filed. The applicant also states that it
has no complaint against the Defendants in the management of trust affairs, and has therefore no interest in the
suit of the reliefs claimed.
The Respondents on the other side claims that the 5th Defendant is a necessary party in the proceedings
andshould not be allowed to opt out of the proceedings since its removal would prejudice the interests of the
Plaintiff/Respondents. Mr. Muriithi for the Respondents submitted that the Court should determine whether
it would be able to adjudicate the matters in dispute without the 5th Defendant appearing as party in the suit.
The issue of authority and capacity to sue goes to jurisdiction. The applicants have submitted, and properly
so,that a company can only sue in its own name with the sanction of its Board of Directors or under a resolution
in generalor special meeting. The Respondents have not shown this Court that they have been authorized to take
out theseproceedings in the name of the 5th Defendant or at all. it matters not whether or not they have certain legal
rights thatthey would wish to enforce as beneficiaries under the relevant Trust deed.They must come to Court properly
and with authority. I am not convinced either that these proceedings providethe proper means by which to urge the
removal and/or replacement of trustees but I find it unnecessary to venture into the issue.
I find that the Respondents have no valid grounds upon which to challenge the present application and proceed to allow
the same. The Respondents will bear the costs of the application.
Dated and Delivered at Nairobi this 10 th day of December 2004.
M.G. Mugo
Judge
In the presence of
Makori h/b for 5 th Plaintiff/Applicant
Muriithi for 1 -4 Plaintiffs
N/A for Defendants