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Supreme CourtPartially AllowedCivil Application 12 of 2019

Stephen Maina Githiga & 5 others v Kiru Tea Factory Company Limited

Supreme Court of Kenya
29 November 2019
David Kenani MaragaD. K. MaragaMohammed Khadhar IbrahimM. K. IbrahimJackton Boma OjwangJ. B. OjwangSmokin Charles WanjalaS. C. WanjalaNjoki Susanna NdunguNjoki Ndungu
5,745 words in judgment
View original judgmentRead on Kenya LawDownload the judgment (PDF) Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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Supreme Court allows amendment of pleadings but defers stay pending proper representation.

What this practically means

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The Supreme Court partially allowed an application from directors of Kiru Tea Factory who were convicted of contempt. They can amend their case to include a request to stop further contempt proceedings. However, the Court first needs to resolve which lawyers properly represent the company, as there is a dispute over who controls it. The amendment will help define the real issues.

Executive summary

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This ruling by the Supreme Court of Kenya (Maraga, CJ; Ibrahim, Ojwang, Wanjala & Njoki Ndungu, SCJJ) determines two preliminary issues arising from an ongoing dispute over the control of Kiru Tea Factory Company Limited. The applicants, who were convicted of contempt of the Court of Appeal's status quo orders of 6 December 2017, sought leave to amend their application for stay of further contempt proceedings before the Court of Appeal, and also sought a stay of those proceedings. The Court also had to resolve a dispute over which law firm—M/s. Kithinji Marete & Company Advocates or M/s. Triple OK Law—properly represented the respondent company, given a factional battle over its directorship. The Court held that the Court of Appeal's Ruling of 22 February 2019, which nullified the elections of 14 December 2017 and convicted the applicants for contempt, remained in full force and effect as it had not been overturned. Consequently, the status quo ante still obtained, and the faction led by Mr. Geoffrey Chege Kirundi, represented by M/s. Kithinji Marete & Company Advocates, was the proper party to represent the respondent. The Court granted the applicants leave to amend their application to capture subsequent developments, but declined to consider the merits of the stay application at that stage, preferring to first resolve the representation issue and give the respondent an opportunity to reply. The application was partially allowed, with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicants have satisfied the conditions-precedent for amendment to the Notice of Motion application dated 3 April 2019
  2. 2.Whether the applicants have established the conditions-precedent for grant of Orders of stay of proceedings
  3. 3.Which law firm is properly on record for the respondent

Key legal issues

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01

Which law firm is properly on record for the respondent company where there is a dispute over the company's directorship and two factions have appointed different advocates?

Holding

The firm of M/s. Kithinji Marete & Company Advocates, representing the faction led by Mr. Geoffrey Chege Kirundi, is allowed to remain on record for the respondent, because the Court of Appeal's Ruling of 22 February 2019 (which nullified the elections of 14 December 2017 and convicted the applicants for contempt) remains in force and has not been overturned, meaning the status quo ante still obtains and the faction led by the 1st applicant has not demonstrated a lawful change of directors.

Reasoning

The Court noted that the Court of Appeal Ruling of 22 February 2019, which convicted the applicants for contempt and nullified the elections of 14 December 2017, had not been reviewed or overturned. The status quo enacted by the Court of Appeal still obtained: no elections, nor change of directors. The faction led by the 1st applicant failed to demonstrate a change of directors subsequent to that Ruling. Allowing that faction to appoint its preferred advocates through an agency arrangement would compromise the integrity of the proceedings. Since the firm of M/s. Kithinji Marete & Company Advocates was previously on record for the faction led by Mr. Geoffrey Chege Kirundi, and that faction is responsible for the actions complained of, that firm was allowed to remain on record.

p. 10
02

Whether the applicants should be granted leave to amend their application dated 3 April 2019 to include a prayer for stay of further contempt proceedings before the Court of Appeal.

Holding

Yes, the applicants are granted leave to amend their application to capture developments in the case, as the purpose of the amendment is to define the real question in controversy and the respondent will have an opportunity to respond.

Reasoning

The Court found that there had been developments in the case before the Court of Appeal (the filing of a further contempt application dated 30 May 2019) which would be adequately captured in the amended application. The Court has inherent power under Rule 3(5) of the Supreme Court Rules to make orders necessary for the ends of justice. The amendment would define the real question in controversy, and the respondent would still have an opportunity to respond, addressing any potential prejudice.

p. 6
03

Whether the Court should grant a stay of further contempt proceedings before the Court of Appeal at this stage.

Holding

The Court declined to consider the merits of the stay application at this stage, as it would effectively be an ex parte process, and preferred to first resolve the respondent's legal representation and give the respondent an opportunity to reply.

Reasoning

The Court noted that the prayer for stay in the present application was essentially the same as the prayer sought in the proposed amended application. Considering the stay application at that juncture would be an ex parte process, which rarely carries the essentials of fairness. The Court preferred to accord the respondent, after a determination of its legal representation, an opportunity to reply, and to avoid a duplication of considering the prayer at that stage and again in the amended application.

p. 5

Legal principles established

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  • A subsisting court order remains in full force until overturned on appeal.
  • Courts have inherent power to allow amendment of pleadings to capture developments.
  • Amendment is allowed if it defines the real question in controversy and opposing party can respond.
  • A court must first ascertain bona fide directors when there is a dispute over legal representation.
  • Ex parte consideration of a stay application is rarely fair and should be avoided.

Court orders

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  1. 1.The Application dated 2 July 2019 is partially allowed, to the extent that the applicants be and are hereby granted leave to amend the application dated 3 April 2019, in the terms of the draft annexed to the application.
  2. 2.The applicants shall file and serve the amended application, together with written submissions thereon, within ten (10) days from the date of this decision.
  3. 3.The firm of M/s. Kithinji Marete & Company Advocates is allowed to be on record for the respondent, and not the firm of M/s. Triple OK Law.
  4. 4.The respondent is at liberty to file a response, together with written submissions thereon, within seven days of service of the amended application.
  5. 5.Costs shall be in the cause.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Mohammed Khadhar Ibrahim
majority
Jackton Boma Ojwang
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nyeri
Civil Application No. 132 of 2017
Jurisdiction invoked
Section 21(1)(b) and (2) of the Supreme Court Act; Rule 3(5) of the Supreme Court Rules

Relief refused

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Stay of further proceedings, hearing and prosecution of the contempt application dated 30 May 2019

The Court declined to consider the merits of the stay application at that stage because it would be an ex parte process, preferring to first resolve the respondent's legal representation and give the respondent an opportunity to reply.

p. 5

Costs

Costs shall be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We are constrained to proceed on the basis of the existence of the Court Order, as issued by the Court of Appeal, through its Ruling delivered on 22 February 2019. The same not having been reviewed or overturned, as evidenced by the appeal filed before this Court, it follows that its full tenor and effect remains in force.
p. 10 Effect of subsisting court orders pending appeal
Rule 3(5) of the Supreme Court Rules gives this Court inherent power to make such Orders, or give such directions as may be necessary for the ends of justice. We are satisfied that the purpose of the proposed amendment is to define the real question in controversy, and that the respondents will still have an opportunity to respond to the amendment, thereby addressing any potential prejudice that they may have suffered.
p. 6 Inherent power to allow amendment of pleadings
We are not inclined to consider the merits of the stay application at this stage, as considering it will in effect be an ex parte process, a practice that rarely carries the essentials of fairness.
p. 5 Ex parte proceedings and fairness
The Application dated 2 July 2019 is partially allowed, to the extent that the applicants be and are hereby granted leave to amend the application dated 3 April 2019, in the terms of the draft annexed to the application.
p. 10 Final orders on amendment
The firm of M/s. Kithinji Marete & Company Advocates is allowed to be on record for the respondent, and not the firm of M/s. Triple OK Law.
p. 10 Final orders on legal representation

Key timeline

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2017-12-06
Court of Appeal issues status quo orders in the dispute over Kiru Tea Factory.
2017-12-14
Elections held at Kiru Tea Factory; later nullified by Court of Appeal.
2019-02-22
Court of Appeal ruling convicts applicants for contempt and nullifies elections.
2019-03-04
Applicants file Notice of Motion application (dated 3 April 2019) seeking stay.
2019-05-30
Further contempt application filed before Court of Appeal.
2019-07-02
Applicants file current application seeking leave to amend and stay.
Ruling date
Supreme Court partially allows amendment, defers stay, and resolves legal representation.

Practical implications

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For lawyers

Verify client's authority to instruct

When a company's directorship is disputed, confirm which faction holds valid directorships under any subsisting court order. Filing an appearance for a faction without verifying the order's status risks being struck out. Always check for pending appeals that might affect the order's force.

For businesses

Court orders bind until overturned

If a court order nullifies your company's elections or directors, that order remains effective even if you appeal. You cannot appoint new lawyers or make decisions based on a later election until the order is set aside. Ensure compliance to avoid contempt findings.

For individuals

Amendments can update your case

If new events happen after you file a court case, you can ask to amend your application to include them. The court will allow it if it helps define the real dispute and the other side gets a chance to respond. This keeps your case relevant without starting over.

Frequently asked questions

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Can I amend my court application in Kenya after filing?+

Yes, courts allow amendments to capture new developments, as long as the amendment defines the real issue and the other party can respond. The Supreme Court in this case granted leave to amend to include a stay of further contempt proceedings.

What happens if a court order is appealed in Kenya?+

The order remains in full force until it is overturned or stayed by a higher court. In this case, the Court of Appeal order nullifying elections was still binding despite an appeal, so the directors could not change legal representation without following that order.

How does a Kenyan court decide which lawyer represents a company in a dispute?+

The court first determines who the bona fide directors are, based on any subsisting court orders. If a valid order nullified elections, the directors before that order remain in control. The court will not allow a faction to appoint lawyers if it would compromise the proceedings.

Can I get a stay of contempt proceedings in Kenya?+

Yes, but courts are cautious. They prefer not to decide a stay application ex parte (without hearing the other side). The Supreme Court deferred the stay request until the respondent's legal representation was settled and they could respond.

Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Stephen Maina Githiga & 5 others v Kiru Tea Factory Company Limited", Case Analysis (2019). Civil Application 12 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2019/80/eng@2019-11-29

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