[2012] KEHC 827 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

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JOSEPH MUCHUI MUIRURI………................……………..PLAINTIFF/APPLICANT

VERSUS

PETER KARIUKI MACHARIA……....................….1ST DEFENDANT/RESPONDENT

KIHIUMWIRI FARMERS COMPANY LIMITED….2ND DEFENDANT/RESPONDENT

RULING

The application before the court is brought by a Notice of Motion dated 14th December, 2010 and taken out under Order 40, Rules 2 & 4, of the Civil Procedure Rules 2010; Section 135 of the Companies Act, Cap 486 Laws of Kenya. The Applicant thereby seeks from the court orders that-

1. A temporary interlocutory injunction do issue restraining the Respondents, their Agents’ servants and/or proxies from holding the Annual General Meeting on 15th December 2010 or any subsequent date till the determination of this suit for further orders of the court.

2. The Honourable Court do order for a shareholders meeting of the 2nd Defendant to be called, held and conducted in such manner as the court deems fit.

3. The Officer Commanding Station Division (sic) (OCPD) Thika police be ordered to enforce, oversee and / or ensure obedience or compliance with orders of the court.

The application is supported by the annexed affidavit of Mr. Joseph Muchui Muiruri, sworn on 14th December, 2010 and is based on the grounds that-

1. The Defendant / Respondent has on a paid up advertisement put on the daily nation advertised for annual general meeting to be held on 15th December 2010.

2. On 13th February 2010 the Defendants purported to hold another annual general meeting.

3. The dissatisfied shareholders of the 2nd Respondent had requisitioned for a general meeting which was held on 19th December 2009 wherein the 1st Defendant was voted out as a director of the 2nd Defendant.

4. That the Registrar had called for a meeting of the 2nd Defendant for 14th December 2010 which meeting was opposed by the Respondents so as to maintain the status quo.

5. The 2nd Defendant has been embroiled in leadership wrangles wherein the successive directors have been in office illegally and have committed all acts of waste and mismanagement in exclusion of the shareholders.

6. The Defendants/Respondents had been issued with a notice by the Registrar to hold the Annual General Meeting after some members complained to the Registrar and which it has failed to comply with.

7. Any shareholder opposed to the management of the 2nd Defendant is harassed, intimidated and even arrested on fabricated charges.

8. The ills of the 2nd Defendant can only be sorted out by its shareholders through an all inclusive shareholders’ meeting.

9. The meeting of the Defendant on 15th December, 2010 cannot be fair and just as the same as the same as partisan.

10. The 1st Defendant cannot convene any meeting of the 2nd Defendant and any such meeting would be illegal in view of member’s resolution.

I have noticed that the application is not opposed as there is neither a replying affidavit filed nor grounds of opposition. I have also noticed that there is no evidence of the Respondents being served as there is no affidavit of service on record. I am of the humble view that in the absence of such service this matter cannot proceed ex-parte. Therefore, in the interests of justice and fairness, I order that the matter be stood over generally with leave to the applicant to take appropriate steps to advance it.

It is so ordered.

L. NJAGI

JUDGE

DATEDand DELIVEREDat NAIROBI this 21st day of November, 2012

MUTAVA

JUDGE