Kariuki Njoroge & 4 others v Stephen Mugo Mutothori & 2 others

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 609 of 2004 KARIUKI NJOROGE …………………...................………………. 1ST PLAINTIFF MUTEGI KAREGA………………..................…………………….. 2ND PLAINTIFF SAMUEL NGUGI NGANGA…………………..................………. 3RD PLAINTIFF JOHN KAMAU KANJIGI…………………………....................… 4TH PLAINTIFF KIAMBU DANDORA FARMERS CO. LTD…................……… 5TH PLAINTIFF VERSUS STEPHEN MUGO MUTOTHORI ………….............………. 1ST DEFENDANT RAYMOND MWANGI WAWERU……….............…………. 2ND DEFENDANT PETER KARUMBI KEINGATI…………….............………. 3RD DEFENDANT RULING The 5th Defendant Company Kiambu Dandora Farmers Co. Ltd. has filed this application seeking an order of the Court to strike its name from these proceedings. It contends that it has been improperly joined in the suit which suit has been instituted without authority, by way of resolution against certain of its directors who happen also to be trustees of the 5th Defendants assets. The 5th Defendant applicant also contends that there would be a conflict of interest if the suit is allowed to continue as filed. The applicant also states that it has no complaint against the Defendants in the management of trust affairs, and has therefore no interest in the suit of the reliefs claimed. The Respondents on the other side claims that the 5 th Defendant is a necessary party in the proceedings and should not be allowed to opt out of the proceedings since its removal would prejudice the interests of the Plaintiff/Respondents. Mr. Muriithi for the Respondents submitted that the Court should determine whether it would be able to adjudicate the matters in dispute without the 5 th Defendant appearing as party in the suit. The issue of authority and capacity to sue goes to jurisdiction. The applicants have submitted, and properly so, that a company can only sue in its own name with the sanction of its Board of Directors or under a resolution in general or special meeting. The Respondents have not shown this Court that they have been authorized to take out these proceedings in the name of the 5th Defendant or at all. it matters not whether or not they have certain legal rights that they would wish to enforce as beneficiaries under the

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