Peterson K. Muthathia v County Public Service Board Consultative Forum, Philip Kungu, Claire Kagwiria, Rodah Masaviru & David Kombo Ondimu [2019] KEHC 7406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

AT NAIROBI

PETITION NO. 118 OF 2019

PETERSON K. MUTHATHIA ..........................................................................PETITIONER

VERSUS

COUNTY PUBLIC SERVICE BOARD CONSULTATIVE FORUM...1ST RESPONDENT

PHILIP KUNGU........................................................................................2ND RESPONDENT

RODAH MASAVIRU................................................................................3RD RESPONDENT

CLAIRE KAGWIRIA...............................................................................4TH RESPONDENT

DAVID KOMBO ONDIMU......................................................................5TH RESPONDENT

RULING

1. The petitioner through a Notice of Motion dated    25th   March 2019 and filed on even date seeks an order that pending the hearing and  determination of the Application herein the court do issue conservatory orders staying and/or to stay/suspend the purported Resumption of the 2018 Annual General Meeting scheduled for 27th March, 2019 and the special General meeting scheduled for 28th March 2019.

2. On 26th March 2019 this court at around 12. 00 noon gave clear directions certifying the application urgent and directed the Petitioner to serve both the Application and Petition and  the matter be mentioned on 27th March 2019 at 9. 00 a.m for directions and any necessary orders in the interest of justice.

3. The Petitioner in complete disregard to the court's orders, as per his affidavit of service   dated 27th March 2019, served the 2nd Respondent with the court's order and mention notice instead of serving upon the Respondents the Application and Petition and further failed to appear before court at 9. 00 a.m as ordered but at 11. 30 a.m when the court had already set the matter for mention on 3/4/2019 and purported to urge the matter seeking conservatory orders.

4. Mr. Nyawara, learned Advocate appearing for the Respondents urged that he was not served   with the Application and Petition as ordered and as such he is unable to know the nature of the subject matter before court. He further submitted the process started on Monday 25/3/2019, as a notice of meeting was issued on 13th March 2019.  He requested that he be served as directed by the court to enable him file the Respondents’ response. The service he urged was effected at 7. 00 p.m on 26th March 2019.

5. The Counsel for Petitioner urges they were instructed on 22/3/2019 and filed the petition and Application on 25/3/2019. She urged the notice issued for the meeting was illegally issued   by the chairman as it is contrary to the Constitution of the 1st Respondent.

6. In the instant application the Petitioner avers that the notice was issued on 12th March 2019, 13 days to the Resumption of the 2018 Annual General meeting scheduled for 27th March 2019 and the special General Meeting scheduled for 28th March 2019.  From 12th March 2019 todate is a long time, within which the Petitioner should   have taken appropriate action to have the orders sought herein granted.  The meeting was not called suddenly as the Petitioner was aware of the AGM and special General Meeting being a process and not an event. The Petitioner did not raise any objection but choose to sit and wait to strike at the last hour by filing the Petition 2 days to AGM and Special AGM seeking conservatory orders. The petitioner has not given any good  reason for delay in filing the application and petition since 12th March 2019 when notice of the meeting was issued.

7.  The Petitioner herein, is clear has not come to this court, with clean hands, as of now he has not obeyed the court's order directing service.  He   has not shown what prevented him from complying with the court's order. Similarly he has not demonstrated what prevented him from filing his petition for equitable reliefs sought in good time since 12th March 2019.

8.  I find that the Petitioner, has come to court too late in the day and if the application is granted the Respondents who have as of today started the AGM and have set arrangements for specialAGM on 28/3/2019, would stand to suffer substantial loss and damages if the meeting is stayed.

9.  I have considered the Petition and I am alive to the fact, that if the Petition succeeds upon    hearing and determination of the same, there would be nothing stopping the court from nullifying what the Respondents would have done or passed, if   the process was carried out not in accordance with the dictates of the 1st Respondent's constitution, as there is no damage that shall have been suffered by the Petitioner, if any, which does not have a remedy instead of staying the meeting which is still  ongoing and to proceed on the following day.

10.  In view of the above, and noting the Respondents are yet to be served with the Application and the Petition, I direct the Respondents be served promptly and not later than 28th March 2019.

11.  I decline to grant the orders sought by   Petitioner/Applicant in the application dated 25thMarch 2019.

12.  I order that costs be in the cause.

Dated, signedanddelivered at Nairobi this 27th day of March, 2019.

…………………………….

J .A. MAKAU

JUDGE