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ELCAllowedApplication dated 8.5.2024 (within the main suit)· [2024] KEELC 6595 (KLR)

Baiya v Mathenge & 4 others (Environment & Land Case E221 of 2023) [2024] KEELC 6595 (KLR)

Not expressly named in the judgment; a first-instance court presided over by Lucy N. Mbugua, Judge, at Nairobi
9 October 2024
LMLucy N. Mbugua
894 words in judgment
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The bottom line

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What this practically means

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Executive summary

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Two firms of advocates - Macharia Gakuo & Co. Advocates and Nduta Kabiria & Co. Advocates - each claimed to represent the 5th defendant. Macharia Gakuo & Co., instructed by Godfrey Muhuri Muchiri, a director, pursuant to a resolution dated 14.4.2024, applied on 8.5.2024 for a declaration that Nduta Kabiria & Co. was not properly on record and should not be granted audience, and that its documents be expunged. The applicants relied on rulings in High Court Commercial Case No. E096 of 2019 (orders of 31.7.2019, 28.7.2023 and 26.6.2024) to the effect that former directors continue in office and directors named in the CR-12 are precluded from assuming office duties, including appointing advocates, pending determination of the directorship dispute. Nduta Gitonga opposed, stating her firm was instructed on 14.6.2023 following a resolution of 20.8.2021, and contended that the CR-12 directors are presumed to be in charge absent dissolution of the board, invoking Section 34 of the Companies Act 2015. Justice Lucy N. Mbugua held that the directorship dispute remained unresolved, that the instructions to Nduta Kabiria emanated from directors without mandate under the subsisting High Court orders, and, applying Alvin Mbae v Kinyua Mukatha, declined to rival concurrent-jurisdiction findings. The application was allowed and all documents filed by Nduta Kabiria & Co. Advocates were expunged from the record. Judgment was delivered on 9 October 2024 at Nairobi.

Key legal issues

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01

Whether the instructions to Nduta Kabiria & Co. Advocates were validly given

Holding

The instructions were invalid because they emanated from directors lacking authority under subsisting High Court orders

Reasoning

The court found a live directorship dispute over the 5th defendant. The ruling of Judge Njoki Mwangi in HCCOMM No. E096 of 2019, upholding orders of 31.7.2019, held that former directors continue in office and directors named in the CR-12 are precluded from appointing advocates. Since the instructions to Nduta Kabiria came from CR-12 directors, they had no mandate to instruct the firm.

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02

Whether the court should disturb or rival a determination of a court of concurrent jurisdiction

Holding

It should not; doing so would spawn judicial anarchy and chaos

Reasoning

Relying on Alvin Mbae & 2 Others v Kinyua Mukatha & 2 Others [2018] eKLR, the court declined to make a finding inconsistent with the orders issued by a court of competent and concurrent jurisdiction which had not been set aside on appeal or review.

p. 2

Legal principles established

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  • Directors precluded by subsisting court orders from assuming office duties have no mandate to instruct advocates on behalf of a company, and documents filed without such mandate may be expunged.
  • A court of concurrent jurisdiction should not sit over an issue already decided by another court of competent jurisdiction.

Court orders

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  1. 1.The application dated 8.5.2024 is found to be merited and is allowed as drawn
  2. 2.Any documents filed by the firm of Nduta Kabiria Advocates are expunged from the records
  3. 3.The firm of Nduta Kabiria Advocates is not properly on record and should not be given audience by the court

Authorities

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Legislation

  • Companies Act 2015Section 34

Cases cited (2)

  • George Pariken Ole Narok & Another v Cabinet Secretary, Ministry of Industry, Trade & Co-operatives & Another; Kenya Farmers Association Ltd (Interested Party)
    [2021] eKLR
  • Alvin Mbae & 2 Others v Kinyua Mukatha & 2 Others
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the court over the matter in which the 5th defendant is a party; the application arises interlocutorily in that suit

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Baiya v Mathenge & 4 others (Environment & Land Case E221 of 2023) [2024] KEELC 6595 (KLR)", Case Analysis (2024). Application dated 8.5.2024 (within the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6595/eng@2024-10-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.