Kifaru Investment Limited & 6 others v Kihingo Vilage (Waridi Gardens Ltd & another; James Ndungu Hithenji & 3 others (Contemnors) [2020] KEELC 3589 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT MILIMANI

ELC CASE NO. 1225 OF 2013

KIFARU INVESTMENT LIMITED & 6 OTHERS………..DECREE HOLDERS

VERSUS

KIHINGO VILAGE

(WARIDI GARDENS LTD & ANOTHER......................JUDGEMENT DEBTOR

JAMES NDUNGU HITHENJI & 3 OTHERS..............................CONTEMNORS

RULING

Background.

1. This is a Ruling in respect of two applications which were filed by the Decree holders /Applicants. The first application is dated 8th July 2019 and the second application is dated 17th October 2019. The two applications seek similar orders most of which have been spent in that they were not granted ex-parte or have been overtaken by events. What remains to be addressed is whether the persons who are sought to be punished for being in contempt of court orders are guilty as alleged; whether the firm of Musyoka Wambua & Katiku Advocates should be barred from acting for the 2nd Judgement debtor /Respondent and whether the court should order the Officer Commanding Gigiri Police Station to provide security to FAPCL Group and to the residents of Kihingo village (Waridi Gardens) Estate on a 24 hour basis at their cost.

2. The Applicants had filed a suit against the Respondents in which they sought certain reliefs against the Respondents. The Respondents filed an application for stay of proceedings and reference of the dispute to arbitration. In a ruling delivered on 7th November 2014, Justice Gitumbi stayed the proceedings and referred the dispute to an arbitrator. A single arbitrator was appointed who published his award on 28th July 2016. The arbitral award was adopted as a judgement of the court on 6th February 2019. It is this entry of Judgement which triggered a series of applications which culminated in the two applications which are the subject of this ruling.

Applicants’ contention.

3. The 1st and 2nd contemnors are directors of the 2nd Respondent. The 3rd contemnor is an IT technician who is in charge of the security of the Estate. He takes orders from the 1st and 2nd contemnors. The 4th contemnor is the head of security in the estate and takes orders from the 1st and  2nd contemnors.

4. The Applicants contend that the contemnors are guilty of breach of various court orders. The Applicants argue that on 2nd July 2019, Justice Komingoi ordered that the status quo be maintained until delivery of a pending ruling which was to be delivered on 26th September 2019. On 26th September 2019 when the ruling was delivered, the Judge ordered the Respondents not to interfere with the provision of services and utilities to the estate.

5. The Applicants argue that in breach of the Court orders, on 20th August 2019, the 1st contemnor without the authority of shareholders and newly appointed directors, appointed the 2nd contemnor as the managing director of the 2nd Respondent. On 14th October 2019 the 1st contemnor in the company of the 3rd and 4th contemnors invaded the club house and attempted to access the server room. On both occasions, the Applicants contend that the 1st contemnor brought in press people who misreported that the 1st contemnor had won the suit and that NTV reporters who accompanied him broadcasted the events thus infringing on the privacy of the occupants of the estate.

6. The Applicants also contend that on 16th October 2019, all the four contemnors in the company of hired goons invaded the club house, broke into the server room and changed all security codes and cut off internet services to the occupants of the estate. The hired goons also assaulted Kshorkumar Dhanji Varsani. The hired goons have since been patrolling the estate posing a security threat to the residents. The Applicants allege that the hired goons have destroyed the club house and are behind stealing of water metres and that they play loud music which is annoying to the residents.

7. The Applicants also argue that as a result of interference with the server, all locks for house No. 47 cannot function as all locks are electronically controlled from the sever room. They also argue that a majority of the shareholders on 30th July 2019 signed a petition opposing, the firm of Musyoka Wambua & Katiku Advocates from acting for the 2nd Respondent. The shareholders had agreed to appoint FAPCL Group as an independent estate agent but this agent has not been allowed to carry out its duties and a call for assistance from the OCS Gigiri Police Station has gone unheeded.

8. The 3rd Applicant contends that he hired workers to carry out repairs on his house but the 1st and 4th contemnors chased them away. He was assaulted and this caused the 1st, 2nd and 4th contemnors being charged in criminal case No 1097 of 2019 for various charges.

1st Respondent’s Position.

9. The 1st Respondent through its lawyers informed the court that it was not opposed to the two applications.

2nd Respondent’s contention

10. The 2nd Respondent opposed the Applicants’ application based on a replying affidavit sworn by Hon. James Ndung’u Gethenji on 1st November 2019. The 2nd Respondent contends that the application of 17th October 2019 is subjudice that of 8th July 2019 and that this offends section 6 of the Civil procedure Act and that the latter, Application should be stayed pending the hearing and determination of the former.

11. The 2nd Respondent further argues that if any orders were to be granted as prayed in the Applicants’ application of 17th October 2019, they will be in direct conflict with the orders given on 4th December 2018 in Nairobi High Court Petition No. E 105 of 2018

( Gitahi Gethanji & 3 Others Vs James Ndungu Gethanji & 4 Others in which the High Court directed that the status quo regarding the directorship of the 2nd Respondent and the provision of utilities and services to its members prevail pending the hearing and determination of the petition. The 2nd Respondent therefore argues that if the directors of the 2nd Respondent who are the 1st and 2nd contemnors were to be kept out of the affairs of the 2nd Respondent, this will hamper the running of the 2nd Respondent.

12. The 2nd Respondent further argues that the status quo which was to be maintained in the Petition mentioned hereinabove is that it is the 2nd Respondent who were to provide services and utilities to the residents of the estate and that the applicants’’ plea that FAPCL be allowed to take over management of the estate would go against the order of 4th December 2018. The 2nd Respondent in support of this argument referred to Justice Komingoi’s ruling of 26th September 2019 where the judge was alive to the orders in the petition as a result of which she declined to issue any orders which would have gone contrary to the orders issued in the petition.

13. On the issue of barring the firm of Musyoka Wambua & Katiku Advocates from representing the 2nd Respondent the 2nd Respondent contends that a petition signed by shareholders is not a recognized way of removing a law firm representing a company and that removal of a firm can only be done in accordance with the memorandum and Articles of a company and that in any case, the alleged petition removing the firm is not exhibited in the application.

14. On the issue of the appointment of FAPCL Group, the 2nd Respondent contends that this matter was settled in a ruling delivered on 26th September 2019 and to revisit the same issue is like this court sitting on appeal from a ruling of a judge of equal jurisdiction and that the issue is now res judicata .

2nd Contemnor’s contention.

15. The 2nd contemnor opposed that Applicants’ application based on a replying affidavit sworn on 4th November 2019. The 2nd contemnor contends that the Applicants’ application is frivolous and constitutes an abuse of the process of the court. The 2nd contemnor argues that the Applicants are trying to get orders outside what the arbitrator granted and that in any case, the issues being raised have been decided by Justice Komingoi in a Ruling delivered on 26th September 2019. The 2nd contemnor refers to the orders granted in the petition which was before the High Court. He argues that the order of 4th December 2018 has never been set aside or appealed against.

Analysis and issues for determination.

16. I have carefully gone through the two applications as well as the submissions by counsel for the parties made during the oral hearing of the applications. Though there were no directions regarding filing of written submissions, I have also considered the written submissions filed on behalf of the Applicants. Mr Gikonyo for the 2nd Respondent had submitted that I do not consider the submissions filed on behalf of the applicants’. I have looked at the submissions which basically reiterate what is contained in the supporting affidavits of the Applicants and the grounds thereof. The rest contain authorities which the Applicants are relying on.

17. There is nothing which prevents a party from preparing written submission even when the application is going to be heard orally. Mr Gikonyo who was opposed to this approach himself refereed to decisions which he had not supplied to counsel and the court but later filed copies of some of them without the order of the court but the court still went ahead to consider them. Where anything is going to assist the court in determination of the issues involved, a court cannot turn a blind eye to the same unless it will prejudice another party which is not the case here.

18. In paragraph (1) hereinabove, I set out what remains to be determined in the two applications. Some issues will flow from those aspects but before I deal with them, I will first deal with the issue of whether the application dated 17th October 2019 is subjudice that of the one dated 8th July 2019 . Mr Gikonyo argued that the application dated 17th October 2019 is subjudice and ought to be stayed pending the hearing and determination of the one of the 8th July 2019. In support of his argument, he relied on Section 6 of the Civil Procedure Act which provides as follows:-

“No court shall proceed with the trial of any suit or  proceeding in which the matter in issue is also directly and  substantially in issue in a previously instituted suit or  proceeding between the same parties, or between parties  under whom they or any of them claim, litigating under the  same title, where such suit or proceeding is pending in the  same or any other court having jurisdiction in Kenya to grant  the relief claimed”.

19. Section 6 of the Civil Procedure Act with suits which are filed separately in respect of the same subject matter. In the instant case, the Applicants had filed the application on 8th July 2019 from which they were granted ex-parte orders. When the ex-parte orders were set aside following an application by the 2nd Respondent, the present application was filed which had expanded prayers. One of the prayers was that the current application be heard together with the early one. There is therefore nothing subjudice in the current application and the case of Susan Nyambura Mwathi Vs Duncan Kiria Kabete ( 2019 ) eKLR which was relied upon by Mr Gikonyo is irrelevant.

20. The next issue to be determined is whether the two applications are res judicata. I have looked at the two applications vis-a vis the one dated 23rd May 2019 which resulted in the ruling of 26th September 2019. Other than the prayer seeking to bar the firm of Musyoka Wambua & Co. Advocates from acting for the 2nd Respondent, the rest of the prayers were the subject of the application of 23rd May 2019. A decision was made rejecting the appointment of FAPLC Group as managing agents of the estate. The Judge declined the appointment of FAPCL Group because there were orders issued on 4th December 2018 preserving the status quo of the directorship of the 2nd Respondent in as far the issue of provision of services and utilities was concerned. This is the same reason given for the judge refusing to have the 1st and 2nd contemnors punished for contempt.

21. The Applicants in the current application have added the 3rd and 4th contemnors in their fresh bid to cite the contemnors for contempt. The 3rd and 4th contemnors are working or were working under the directions of the 1st and 2nd contemnors. The mere fact that the two were not in the application of 23rd May 2019 cannot save the applications from being res judicata. I therefore find that save for the prayer for removal of the firm of Musyoka Wambua & Katiku Advocates; the two applications are res judicata.

22. Mr Allen Gichumbi tried to argue that he had come to court over fresh acts of contempt which had been committed by the contemnors subsequent to the ruling of 26th September 2019. This argument is without merit. The position which obtained as from 4th December 2018 continued until petition No. E 105 of 2018 was withdrawn on 14th November 2019. It is therefore clear that the contempt which is alleged to have been committed before the 14th November 2019 had been determined by the ruling of 26th September 2019.

23. Having found that the two applications save for prayer which I shall shortly address, are res judicata, it will be superfluous to address myself on whether or not the contemnors are guilty of contempt.

24. The Applicants want the firm of Musyoka Wambua & Katiku barred from representing the 2nd Respondent. The Applicants argue that majority of shareholders signed a petition seeking to bar the firm from representing the 2nd Respondent. This Petition was not annexed to any of the two applications. Besides this, the Memorandum and Articles of Association of the 2nd Respondent do not provide for removal of a law firm vide a petition. There is therefore no basis upon which this court can make an order for removal of the firm of Musyoka Wambua & Katiku . In the case of Nicholas Mahihu Vs Barclays Bank of Kenya Limited (2018) eKLR, the Court of Appeal held that a company not being a Physical person can only make its decisions by resolution of its members in general meetings which are then conveyed through its directors and officials.

25. It is therefore clear that there being no resolution removing the firm of Musyoka Wambua & Katiku from representing the 2nd Respondent, this Court cannot base its orders on signed petitions which are not even placed before the court.

26. Before I wind up this ruling, there is a prayer which sought provision of security to FAPCL and the residents of the estate on a 24 hour basis at their cost. The order was meant to be directed to the OCS Gigiri Police Station. As I understood this prayer, it was meant to be granted before inter-partes hearing. However if this not be the case, I will simply say that a court cannot order the National Police to provide security to private citizens. If for any reason, a person feels that he requires security which he is ready to pay for, then he or she can approach the relevant police officers for that arrangement but not for courts to give such kind of orders.

Conclusion.

27. In conclusion, I find that the Applicants’ application lacks merit. The issues being raised herein will mainly be addressed through the High Court’s Commercial, Admiralty and Tax Division. I proceed to dismiss the Applicants’ application with costs to the 2nd Respondent and the contemnors.

It is so ordered

Dated, Signed and delivered at Nairobion this 13th day of February 2020.

E.O.OBAGA

JUDGE

In the Presence of:-

Mr Kabugu for decree holders, Mr Gikonyo for  Mr Katiku for Judgement debtors and Mr Ooro for Mr Otieno for Chacha Mabanga.

Court Assistant: Hilda

E.O.OBAGA

JUDGE