Stephen Maina Githiga v Kiru Tea Factory Co. Ltd & Geoffrey Chege Kirundi [2017] KEHC 1431 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 106 OF 2017

STEPHEN MAINA GITHIGA …………..…………………….PLAINTIFF

VERSUS

KIRU TEA FACTORY CO. LTD …... 1ST DEFENDANT/RESPONDENT

GEOFFREY CHEGE KIRUNDI ….....2ND DEFENDANT/RESPONDENT

RULING

The plaintiff brought this suit against the four defendants on record for several orders set out therein but at an interim stage sought injunctive orders against the 1st and 2nd defendants.  At the instance of the court, a direction was made that the plaintiff should first comply with Sections 238 and 239 of the Company’s Act 2015 to confer capacity upon him to bring this suit.  These provisions relate to derivative action against the defendants which under company law is informed by the relationship between a party and a limited company.

There is before me an application by way of Notice of Motion under the said provisions of law and relevant provisions of the Civil Act Procedure and Rules, that leave be granted to the plaintiff to continue this suit as a derivative action.

The 2nd defendant who is the chairman of the board of directors of the 1st defendant has filed a replying affidavit opposing the said application.  The court having directed that the ruling herein will be based on the affidavits filed, I have read the grounds set out on the face of the application the supporting affidavit of the plaintiff and the replying affidavit of the 2nd defendant.

The leave contemplated under Sections 238 and 239 of the Companies Act aforesaid is not a condition precedent, because the wording refers to continuation of a suit which may as well mean a party may institute a suit before leave is granted but before he or she continues with the same, such leave should be granted.

It is a cardinal principle of justice that a party should not be driven from the seat of judgment however weak his or her case is.   If I were to deny the plaintiff leave at this stage that would be the position.  The replying affidavit has raised matters of merit relating to the substantive suit and the application for injunction which belong to the province of the main hearing, and where parties will have an opportunity to address the court upon.

For now, I will allow the application for leave as prayed with no order as to costs.

Dated, signed and delivered at Nairobi this 9th Day of November, 2017

A. MBOGHOLI MSAGHA

JUDGE