Stephen Maina Githiga, Francis M Mark, Eston G. Gikoreh & Peter M. Kinyua v Geoffrey Chege Kirundi, John Ngaii Kariri, Christopher Mwangi Kioi & Bernard Kiragu Kimani [2017] KEHC 1387 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL CASE  NO. 230  OF 2017

STEPHEN MAINA GITHIGA ..........................................  1ST PLAINTIFF

FRANCIS M MARK ....................................................... 2ND PLAINTIFF

ESTON G. GIKOREH ...................................................  3RD PLAINTIFF

PETER M. KINYUA ........................................................ 4TH PLAINTIFF

-V E R S U S –

GEOFFREY CHEGE KIRUNDI ..................................... 1ST DEFENDANT

JOHN NGAII KARIRI ................................................... 2ND DEFENDANT

CHRISTOPHER MWANGI KIOI ................................. 3RD DEFENDANT

BERNARD KIRAGU KIMANI ....................................... 4TH DEFENDANT

ORDER ON DIRECTIONS

1) When this matter came up for hearing on 4. 12. 2017 upon the directions made by Hon. Mr. Justice Mbogholi, learned counsels appearing  herein beseeched this court to give directions on how to proceed with the three pending motions dated 16. 11. 2017, 22. 11. 2017 and 30. 11. 2017.

2) It is the submission of Mr. Muite S.C appearing for the 1st, 2nd and 4th defendants that the three motions be heard concurrently and separately since it will be convenient.  Mssrs. Ohaga and Karuga learned advocates for the plaintiffs and 3rd defendant respectively are of the opinion that the applications should not be heard together because they each seek for different  substantive orders.

3) I have considered the rival arguments.  I have also had a cursory perusal of the three motions.  In the motion dated 16. 11. 2017 the plaintiffs are basically seeking for inter alia temporary orders of injunction to restrain the defendants from publishing, circulating and using the plaintiffs names, photographs on the A.G.M. booklet which contains the Annual Reports and financial statements of Kiru tea Factory Co. Ltd for the year ended 30. 6.2017.

4) In the aforesaid motion, the plaintiffs also sought for an order of temporary injunction to restrain the defendants from convening, conducting and or purporting to conduct the A.G.M of Kiru Tea Factory Co. Ltd scheduled for 17. 11. 2017 or at any other date that they may choose.  The plaintiffs successfully obtained exparte orders of injunction on 16. 11. 2017 to restrain the defendants from the publication, circulation and use of A.G.M booklet which contains the Annual Reports and Financial Statements of Kiru Tea Factory Co. Ltd for the year ended 30. 6.2017.  The plaintiffs further  obtained exparte orders of injunction to restrain the defendants from the publication, circulation and use of the plaintiffs’ names and photographs on the A.G.M booklet which contains the Annual Reports and Financial Statements of Kiru Tea Factory Co. Ltd for the year ended 30. 6.2017.

5) The motion dated 22nd November 2017 was taken out by the plaintiffs in which they sought for inter alia the defendants to be cited for contempt and thereafter be committed to prison for a period not exceeding six months or in the alternative each be ordered to pay a fine not exceeding ksh.200,000/= or both.  It is alleged that the defendants blatantly breached the court order issued on 16. 11. 2017 and served upon them on 17. 11. 2017.

6) Pursuant to the aforesaid motion, the plaintiffs obtained exparte orders of injunction before Lady Justice Thuranira on 23. 11. 2017 to restrain the defendants from the implementing any of the resolutions passed by the purported A.G.M conducted on 17. 11. 2017.

7) The defendants took out the motion dated 30. 11. 2017 in which they applied for inter alia:

i. The discharge of the exparte orders issued by this court on 16. 11. 2017 and 24. 11. 2017.

ii. An order of injunction to restrain the plaintiffs from purporting to convene and or conduct an A.G.M or other general meetings of Kiru Tea Factory Co. Ltd on 14. 12. 2017 or on any other date.

iii. An order striking out this suit.

8. This court has now been beseeched to give directions on the way forward in disposing of the three motions.  Having had a casual look at the aforesaid motions it is clear in my mind that the three motions are interrelated.  I  have already set out the nature of orders sought in each application.

9. After a careful consideration, I have come to the conclusion that since the motion dated 22. 11. 2017 seeks to cite and punish the defendants for contempt of the orders issued pursuant to the motion dated 16. 11. 2017, it is appropriate to first hear and determine the motion dated 22. 11. 2017.  The motions dated 16. 11. 2017 and 30. 11. 2017 to be heard together after the motion dated 22. 11. 2017 has been heard and determined.

Dated, Signed and Delivered in open court this 6th  day of December, 2017.

J. K. SERGON

JUDGE

In the presence of:

....................................................  for the Plaintiff

..................................................... for the Defendant