Wendano Matuu Co. Limited, Stephene Ndambuki Muli & Onesmus Muisyo Kimatu v Joshua Kimeu Kioko, James Kioko Kivuvo, John Bosco Ndinga, Samuel Mwanza Nzioka, Juvenalis Musyoki Kavita, Mangu Ngolo & Rose Ndanu Mutua [2015] KEHC 4341 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL CASE NO. 2 OF 2014

WENDANO MATUU CO. LIMITED...........................1ST PLAINTIFF

STEPHENE NDAMBUKI MULI.................................2ND PLAINTIFF

ONESMUS MUISYO KIMATU..................................3RD PLAINTIFF

VERSUS

JOSHUA KIMEU KIOKO......................................1ST DEFENDANT

JAMES KIOKO KIVUVO......................................2ND DEFENDANT

JOHN BOSCO NDINGA........................................3RD DEFENDANT

SAMUEL MWANZA NZIOKA...............................4TH DEFENDANT

JUVENALIS MUSYOKI KAVITA..........................5TH DEFENDANT

MANGU NGOLO...................................................6TH DEFENDANT

ROSE NDANU MUTUA........................................7TH DEFENDANT

RULING

1.       The suit herein was instituted by the firm of Laichena Mugambi & Co. Advocates.   The 1st Plaintiff sued as the duly incorporated company under The Companies Act, Cap. 486 Laws of Kenya. The 1st and 2nd Plaintiff were stated to be the duly elected and registered directors of the 1st Plaintiff.

2.      The Plaintiff’s case against the Defendants is that the Defendants illegally convened a meeting in which they were purportedly elected as the directors of the 1st Plaintiff.   That the Defendants mislead the Registrar of Companies and were listed as the directors of the 1st Plaintiff.  That the Defendants are now carrying out the affairs of the 1st Plaintiff as the purported duly elected directors.

3.      The Plaintiffs have sought orders of injunction to restrain the Defendants from acting as the directors or officials of the 1st Plaintiff, a declaration that the directors of the 1st Plaintiff included the 2nd and 3rd Plaintiff and an order for fresh elections.

4.      An application dated 17th January 2014 was filed simultaneously with the plaint seek temporary orders of injunction against the Defendants.

5.      On 7th March 2014, the firm of Kivuitu Maundu & Co. filed a Notice of appointment of Advocates on behalf of all the Defendants. A notice of change of Advocates for the first Plaintiff was also filed by the firm of Kivuitu Maundu & Co. Advocates. A Notice of discontinuance of suit by the 1st Plaintiff was also filed on the same day by M/s Kivuitu Maundu & Co. Advocates.The notice reads that the 1st Plaintiff has no legally recognized relationship with the 2nd and 3rd Plaintiffs and has forthwith discontinued it’s claim against the Defendants who are its elected directors duly registered with the Registrar of Companies.

6.      Subsequently, on 18th March, 2014, the Defendants filed a replying affidavit in response to the application dated 17th January, 2014.

7.      However, when the application came for hearing, both Mr. Laichena for the Applicants and Ms Kilonzo of Kivuitu Maundu & Co. Advocates for the Respondents informed the court that they appeared for the company (1st plaintiff). It became apparent that the court had to determine who is the proper Advocate on record for the company.    The parties filed written submissions on the issue. I have considered the said rival submissions.

8.      It is trite law that a company is a legal entity which is separate from its directors and shareholders. The company is however an inanimate legal person and can only act through its directors.The bone of contention herein is who the directors of the 1st Plaintiff are.    It is therefore not possible to make a determination on the matter without determining the principal issue herein which is who the current directors of the company are. The court cannot appoint an advocate for a party.    The company as a party herein is entitled to be represented by an advocate of its choice.

9.      The firm of Laichena Mugambi & Co. Advocates filed the suit herein on behalf of all the Plaintiffs.The Defendants have been sued allegedly for being in the office irregularly. The appointment of the firm of Kivuitu Maundu & Co. Advocates is therefore in the same breath questionable.The notice of change of Advocates by Kivuitu Maundu & Co. Advocates to act for the company (1st Plaintiff) and the notice of discontinuance of suit by the company (1st Plaintiff) against the Defendants at this stage is therefore irregular. If the evidence adduced later establishes who the company’s authorized officers are, then the question of representation will be automatically sorted out. In the meantime, I will strike out the Notice of Change of Advocates and the Notice of Discontinuance of suit filed by the firm of Kivuitu Maundu & Co. Advocates on behalf of the 1st Plaintiff.

Costs in cause.

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B. THURANIRA JADEN

Dated and delivered at Machakos this 20th day of May, 2015

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B. THURANIRA JADEN

JUDGE