Kirobon Farmers Co. Ltd v Benjamin Chesulut [2014] KEHC 44 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL  SUIT NO. 40 OF 2014

KIROBON FARMERS CO. LTD……… PLAINTIFF/APPLICANT

VERSUS

BENJAMIN CHESULUT…………. DEFENDANT/RESPONDENT

RULING

By a Notice of Motion  dated 16th June 2014,  the applicant seeks for  orders to  restrain the respondent by himself, his servants, employees and/ or   agents  from calling for,  advertising and  broadcasting for  an Annual General  Meeting (AGM) for  Kirobon Farmers  Co.  Ltd on 20/06/2014 at Molo Social Hall  or  elsewhere, calling for, advertising or  broadcasting for any such meetings for Kirobon Farmers  Co. Ltd. or  any  such  other  position pending and hearing and determination of the suit.

The   applicants are directors of the plaintiff company, while the   respondent   is    a   member and   a   former chairman.  The   respondent  called for  and advertised on radio an  Annual General Meeting for  20/06/2014  and his    actions  are  described as  wrongful, unlawful  and illegal as he   has no  capacity to  call   for  an AGM.    The applicant tried to dissuade the   respondent, but he was adamant and his actions will prejudice the applicant and may lead to chaos, confusion, confrontation and violence.

The plaintiff is a land buying company which purchased land in Ngata, Subukia and Keringet, for the purpose of settling its members. The land has been sub-divided and members settled on their parcels of land.   What is left is preparation and issuance of title documents. The respondent is a former director and chair of the   plaintiff who was removed from   office and there are new elected directors.  Despite  this,  the    respondent  continues  to claim that he  is the  plaintiff's chairman  and has declined to  return the  items belonging to  the  company, including the  company seal, members register, maps, and rubber stamp.  The respondent had earlier secretly procured a new map and was collecting money from members, with a view to issuing title   deeds to them based on the new map, yet he had no capacity to act thus.   Consequently the   new   directors filed   HCCC   No.353 of 2008 (Nakuru) against the respondent and obtained an injunction against the respondent.

Despite all this, the applicant has been calling meetings, allocating plots, collecting money, writing letters and generally issuing directions in his purported capacity as chairman. This has interfered with the duties of the new directors as the respondent's actions amount to running a parallel illegal company office. The company is said to have conducted its Annual General Meeting in November 2013, so calling for another AGM will cause confusion. There was   no response in this application, although at the hearing of the application the counsel suggested that there was   scanty information that the AGM had been held. This is not deposed in an affidavit. From the annexed documents, the respondent had actually sent out minutes for the Annual General Meeting set for 20/06/2014. I think the issue for calling for or advertising for meeting on that day may already have been overtaken by events as the invitation was already sent out.

Apparently the respondent  had in  the past conducted a separate AGM without the applicant's knowledge and had wanted to file returns with the  Registrar of Companies who upon realizing that there were  two camps - advised the applicant to  organise another AGM. They intended to hold an AGM in November 2014. This means the meeting called for on 20th June is intended to circumvent the one set for November 2014. I think there can be only AGM and separate meetings will otherwise lead to confusion both to members and at the company’s registry.

It is therefore prudent that the meeting be halted in terms of prayer 3 of the Notice of Motion. Costs of this application shall be borne by the respondent.

Delivered and dated this 11th day of July 2014 at Nakuru.

H. A. OMONDI

JUDGE