[2020] KEHC 3692 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MILIMANI LAW COURTS

COMMERCIAL & TAX DIVISION

HCCC NO. E 108 OF 2019

IBRAHIM HUSSEIN MAHADI........1ST PLAINTIFF/RESPONDENT

MAHADI ENERGY LIMITED........2ND PLAINTIFF/RESPONDENT

VERSUS

FIRST COMMUNITY BANK.................DEFENDANT /APLLICANT

RULING

1. This is the third Ruling this Court has had to make in rather quick succession. It is in respect to the Notice of Motion dated 27th September 2019 and filed on 1st October 2019 seeking that this Court review’s its Ruling and order of 27th September 2019.

2. Although the Respondents’ reply to the Motion was expunged from the record as being time barred, still the order sought is not grantable, and this Court has expressed itself on the matter sufficiently in its two Rulings.

3. The Applicant says that it has discovered a new matter of a decisive nature which makes a review of the Ruling of the Court of 27th September 2019 inevitable. That it is now revealed that the 1st Plaintiff (Ibrahim Hussein Mahadi) holds a power of attorney from one Adan Abdullahi Alio, said to be a Director of the 2nd Plaintiff.

4. The Court is asked that, by parity of rationale of the said Ruling in relation to the further affidavit of Hussein Hassan Amin, all affidavits sworn by the 1st Plaintiff be “retreated”.

5. In respect to the further affidavit of Hussein Hassan Amin, this Court held:-

“10. Annexed to the affidavit of Yahya Dahir also sworn in support of the application is a search of the records of Mahadi as at 4th June 2019. The names of directors and shareholders is given as follows:-

Name Share

Adan Abdullah Aliow

Director/shareholder 200

Abdi Hassan Amin Director/shareholder 200

Dormohamed Mohamed Dormahamed

Director/shareholder 200

It is therefore clear that even if Hussein held a valid power of attorney on behalf of his brother, he (Hussein) is not a director of the Company and would not have the legal authority to speak as a director of the Company. The power of attorney cannot cloth him with directorship. In the affidavit that was struck out by Court he purports to make assertions as a director of Mahadi which is factually disproved by the search. Hence the decision of the court.”

6. This Court has revisited all affidavits made by the 1st Plaintiff in this matter. In all of them he refers himself as the chairman of the 2nd Plaintiff. In others he also refers to himself as the Managing Director. He asserts directorship in his own right and not because he is holding a power of attorney on behalf of another director. I am not told that a Director cannot be a Director in his own right but nevertheless still hold a power of attorney for another director. Certainly, in the latter capacity he cannot be a director unless admitted as an alternate Director in accordance with Article 25 of the Articles of the Company. In none of the affidavits before Court has the 1st Plaintiff asserted that his directorship is derived from the power of attorney donated to him by Adan Abdullah Alio.

7. As for Hussein Hassan Amin he had deponed that:-

“I am a Director of 2nd Plaintiff by virtue power of attorney by my brother Abdi Hassan Amin who is a director of the 2nd Plaintiff…..”

8. And I would have thought that my decision of 13th May 2020 sufficiently distinguished the two. I observed:-

“29. In conclusion, the Court is inclined to make a comparison of this outcome and that in respect of Hussein Hassan Amin made in the Court’s ruling of 27th September 2019. In the latter, there was the communication of the registrar showing that Hussein was not a director as at 4 June 2019. In an affidavit sworn on 24th June 2019, Hussein answers this by stating that he was a director by virtue of a power of attorney granted to him by his brother, Amin. He did not lay a claim to directorship on his own right. To that the Court held that the power of attorney could not cloth him with directorship. In the current matter the issue is whether Ibrahim, on his own right, is not a director.”

9. There is no merit in the Notice of Motion of 27th September 2019. It is hereby dismissed but with no orders as to costs as the Respondents did not participate.

Dated, Signed and Delivered in Court at Nairobi this 27th Day of July 2020

F. TUIYOTT

JUDGE

ORDER

In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 17th April 2020, this Ruling has been delivered to the parties through virtual platform.

F. TUIYOTT

JUDGE

PRESENT:

Mr Agwara for the Plaintiffs

Dr. Kenyariri for the Defendant.