Pauline Waithera Muraguri & 2 others v Murang’a Farmers Co-operative Union Limited

J.N.Mbuthia & Company Advocates. The grounds as urged to oppose the application are as follows: a) There are no established grounds for review. b) The said Francis Ngone Gathiga has all necessary authority to represent the applicant and to direct the applicant’s officers as necessary. c) The said Francis Ngone Gathiga has full information and is the right person to comply as ordered by the court. The court has considered the parties’ respective submissions and returns that the application must fail due to the following reasons: a) As submitted for the claimants, on 12.05.2017 and long after the orders of 29.03.2017 now sought to be reviewed, by consent of the parties it was ordered that the said Francis Ngone Gathiga appears to show cause on 23.06.2017. The orders sought to be reviewed are clearly superseded by the consent orders of 12.05.2017 and the court will not act contrary to the parties’ own consent. b) The applicant has not established an error or a mistake on record or, fresh evidence initially not available, or indeed any other ground known in law that would justify the review of the orders as prayed for. c) The said Francis Ngone Gathiga is no doubt the chairperson of the respondent, a corporate body. Order 22 rule 35(b) is clear that where a decree is for the payment of money, the decree-holder may apply to the court for an order that an officer of a corporation be orally examined as to whether the judgment-debtor has any and what property or means of satisfying the decree, and the court may make an order for attendance and examination of such judgment-debtor or officer, or other person, and for production of any books or documents. The orders sought to be reviewed were clearly under that provision and the applicant’s lamentation that the corporate veil is being unfairly lifted is obviously an empty expression of grief and the proper action is for the chairperson, the said Francis Ngone Gathiga to comply as by rules required to do. For avoidance of doubt, the court returns that he is the best officer to attend as was ordered by the court. d) Thus the court returns that the application will fail as is liable to dismissal. In conclusion, the application dated 26.05.2017 and filed on the same date is hereby dismissed with costs and for avoidance of doubt, with orders for: a) The said Francis Ngone Gathiga being the applicant’s or judgment-debtor’s chairperson shall attend court for oral examination per order 22 rule 35 of the Civil Procedure Rules, on a date convenient to parties, and to bring records, books, statements of accounts for the applicant in all banks since 2013 where the applicant holds such accounts and including specifically in Cooperative Bank of Kenya, Murang’a Branch where Kshs 53 Million was deposited by the government as part of waiver of coffee debts, and to also produce records on rent in respect of the applicant’s various premises; and b) For the purpose of order (a) above a notice to show-cause already issued or to be issued per order 22 rule 31 of the Civil Procedure Rules shall apply to the said Francis Ngone Gathiga accordingly and failing his attendance on the due date, a warrant of arrest to secure his attendance shall issue forthwith. Signed, dated and delivered in court at Nyeri this Friday, 14th July, 2017. BYRAM ONGAYA JUDGE

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