Kifaru Investment Limited & 6 others v Kihingo Vilage (Waridi Gardens Ltd); James Ndungu Hithenji & 3 others (Contemnors) & 4 others [2020] KEELC 3589 (KLR)
The bottom line
#The High Court dismissed FAPCL Group's contempt and related applications as res judicata, ruling private security cannot be court-ordered and a shareholders' petition cannot change a company's lawyers.
What this practically means
#Executive summary
#Key legal issues
#Whether the later application was sub judice the earlier application under Section 6 of the Civil Procedure Act
It was not sub judice because both applications were part of the same proceedings, the earlier application's ex-parte orders having been set aside and the parties agreeing the two be heard together
Section 6 of the Civil Procedure Act governs separately filed suits over the same subject matter. The 17th October 2019 application was filed after the ex-parte orders in the 8th July 2019 application were set aside, sought to be heard together with it, and thus formed part of the same proceedings. The authority relied on by the 2nd Respondent was therefore irrelevant.
Whether the applications were res judicata
Save for the prayer to remove the law firm, the applications were res judicata, the issues having been determined in the ruling of 26th September 2019
Most prayers were the subject of the application of 23rd May 2019 decided on 26th September 2019, in which the judge declined to appoint FAPCL Group as managing agents and refused to punish the 1st and 2nd contemnors because of the 4th December 2018 status quo orders in Petition No. E105 of 2018. Adding the 3rd and 4th contemnors did not cure the res judicata. The status quo position obtained until the petition was withdrawn on 14th November 2019.
Whether the law firm could be barred from acting for the 2nd Respondent on the basis of a shareholders' petition
No - removal of a company's advocates requires a resolution of the company, not a petition, and the alleged petition was not even exhibited
The Memorandum and Articles of Association of the 2nd Respondent do not provide for removal of a law firm by petition. The petition was not annexed to the applications. Citing the Court of Appeal's decision in Nicholas Mahihu v Barclays Bank of Kenya Limited, the court held that a company acts through resolutions of members in general meetings conveyed by its directors. No such resolution existed.
Whether the court could compel the OCS Gigiri Police Station to provide paid 24-hour security
No - courts cannot order the National Police to provide security to private citizens; a person wishing to pay for security must approach the relevant police officers directly
The prayer was understood as an ex-parte interlocutory prayer, but even otherwise the court has no power to direct the National Police to provide private security arrangements for private citizens at their cost. Any such arrangement is to be made directly with the relevant police officers, not through a court order.
Legal principles established
#- Adding new contemnors does not save an application from being res judicata where the substance of the complaint was already determined
- A company can only make decisions by resolution of its members in general meetings conveyed through its directors and officials
- Courts cannot order the National Police to provide private security to private citizens at their cost
Court orders
#- 1.Dismissal of the Applicants' two applications (dated 8th July 2019 and 17th October 2019)
- 2.Costs of the applications awarded to the 2nd Respondent and the contemnors
- Jurisdiction invoked
- Enforcement of an arbitral award adopted as a judgment of the court on 6th February 2019; contempt of court orders jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kifaru Investment Limited & 6 others v Kihingo Vilage (Waridi Gardens Ltd); James Ndungu Hithenji & 3 others (Contemnors) & 4 others [2020] KEELC 3589 (KLR)", Case Analysis (2020). Not stated in the judgment (Ruling on two applications dated 8th July 2019 and 17th October 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3589/eng@2020-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.