[2023] KEHC 2385 (KLR)

Chairman Extra Ordinary Meeting of Michimikuru Factory Ltd & 2 others v Dickson & another; Kingori (Exparte Applicant) (Judicial Review E002 of 2021) [2023] KEHC 2385 (KLR) (23 March 2023) (Judgment)

Neutral citation: [2023] KEHC 2385 (KLR)

Republic of Kenya

In the High Court at Meru

Judicial Review E002 of 2021

TW Cherere, J

March 23, 2023

Between

Chairman Extra Ordinary Meeting of Michimikuru Factory Ltd

1st Respondent

Registrar of Companies

2nd Respondent

Attorney General

3rd Respondent

and

Maurice Kobia Dickson

1st Interested Party

Lilian Matheri-Returning Officer

2nd Interested Party

and

James Willy Kingori

Exparte Applicant

Judgment

Background 1. By judgment dated March 17, 2022, this court made the following orders:a.A declaration be and is hereby issued that the decision by the registrar of companies substituting the name of James Willy Kingori with the name of Maurice Kobia Dickson as Director of Michimikuru Tea Factory Company Limited violated the applicant’s fundamental right to fair administrative action enshrined in article 47 of the Constitution.b.An order of judicial review of certiorari is hereby issued quashing decision by the registrar of companies to register the name of Maurice Kobia Dickson as director of Michimikuru Tea Factory Company Limitedc.Costs of the application to the application shall be borne by the 2nd respondent.

Notice of Motion 2. By notice of motion amended on July 22, 2022, applicant has introduced a new party, Lilian Matheri who is described as a returning officer and seeks orders that election of director Chiuriu electoral area be declared to be null and void for being in contravention of the court order dated March 17, 2022.

3. By his replying affidavit sworn on November 7, 2022, the 1st interested party opposes the application first on the ground that applicant has not sought leave to join the 2nd interested party and secondly that that application introduces a new cause of action that was not pleaded.

4. The 3rd respondent opposed the application on the grounds that no reasonable cause of action has been disclosed against the 3rd respondent and urged that the 3rd respondent’s name be struck out with costs.

5. I have considered the application in the light of the affidavits and grounds of opposition on record and submissions filed on behalf of the applicant and the 1st interested party.

6. From the pleadings, it is apparent as rightly argued for the 3rd respondent that no cause of action, reasonable or otherwise has been disclosed against the 3rd respondent.

7. Concerning the 2nd interested party, there is no doubt that that party has been joined to the suit without leave. I find that the joining of the 2nd interested party to this application without leave is a nullity. (SeeFrancis Karioko Muruatetu & another v Republic [2017] eKLR and Republic of KenyavDirector of Public Prosecution & 2others ex-parte Azim Jiwa Rajwani &another [2022] eKLR).

8. Applicant seeks a declaration that the election of director Chiuriu electoral area are null and void for being in contravention of the court order dated March 17, 2022.

9. The orders dated March 17, 2022 related to elections held on April 21, 2021. The matters concerning elections held on July 7, 2022 raise a new cause of action that was not pleaded.

10. Consequently, this court finds that an attempt by the applicant to sneak in a new cause of action to these proceedings long after the determination of the suit is not only vexatious but also an abuse of the court process.

11. Consequently, the notice of motion amended on July 22, 2022 is struck out with costs to the 1st interested party and the 3rd respondent.

DATED AT MERU THIS 23RD DAY OF MARCH 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor the Applicant - Mr. Kimathi for L. Kimathi Kiara & Co. AdvocatesFor the 1st Respondent - N/AFor the 2nd Respondent - N/AFor the 3rd Respondent - N/AFor 1st Interested Party - Mr. Alovi for Wambugu & Muriuki AdvocatesFor 2nd Interested Party - N/A