[2014] KEHC 7046 (KLR)
The court found that the application for leave to apply for judicial review orders was meritorious because the impugned Annual General Meeting and subsequent change of directors occurred on 28th June, 2013, and the application was filed on 15th November, 2013, well within the six-month statutory limit. The...
Source-derived case information.
- Citation
- [2014] KEHC 7046 (KLR)
- Parties
- Applicant: Lawrence Thiong'o Kagicha; Applicant: Epharus Wanjiru Mburu; Applicant: Charles Muriungi Kariaki; Respondent: The Registrar of Companies; Respondent: The Attorney General; Respondent: Herbert Njuguna Mwangi; Respondent: John Mwangi Mwaura; Respondent: Simon M. Macharia; Respondent: Mary Wanjiru Ndun'gu; Respondent: Lucy M Uthoni Maina; Respondent: Ephantus Karunge Njuguna; Respondent: Agnes Njeri Mukunda; Respondent: Joseph Muithe Chege
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 268 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to Apply for Judicial Review Orders
- Outcome
- Leave to apply for judicial review orders granted.
- Judges
- LN Mutende
- Legal Topics
- Judicial Review, Company Meetings, Ultra Vires Actions, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lawrence Thiong'o Kagicha
Applicant
Epharus Wanjiru Mburu
Applicant
Charles Muriungi Kariaki
Applicant
The Registrar of Companies
Respondent
The Attorney General
Respondent
Herbert Njuguna Mwangi
Respondent
John Mwangi Mwaura
Respondent
Simon M. Macharia
Respondent
Mary Wanjiru Ndun'gu
Respondent
Lucy M Uthoni Maina
Respondent
Ephantus Karunge Njuguna
Respondent
Agnes Njeri Mukunda
Respondent
Joseph Muithe Chege
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to Apply for Judicial Review Orders
Legal Issues
- 1 Whether the Annual General Meeting held on 28th June, 2013 was void ab initio and ultra vires the Companies Act.
- 2 Whether the Registrar of Companies acted with bias against the applicants by not affording them an opportunity to participate in the meeting and elections.
- 3 Whether the application for leave for judicial review was filed within the statutory time limit.
Ratio Decidendi
The court found that the application for leave to apply for judicial review orders was meritorious because the impugned Annual General Meeting and subsequent change of directors occurred on 28th June, 2013, and the application was filed on 15th November, 2013, well within the six-month statutory limit. The applicants established arguable grounds that the meeting was convened in contravention of the Companies Act, being held only two months after the previous AGM, and that they were denied participation, raising issues of procedural fairness and possible bias by the Registrar of Companies. The court was satisfied that the threshold for granting leave had been met, as the applicants had...
Court Disposition
Leave to apply for judicial review orders granted.
Orders
- Leave is granted to the applicants to apply for orders of certiorari directed to the Registrar of Companies to quash the proceedings of the Annual General Meeting and results of the elections of 28th June, 2013 and all consequential orders, including the change of directors.
Full Case Text
Judgment text and source record
29 paragraphs
No. 199/2014
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC CIVIL CASE NO. 268 OF 2013
1. LAWRENCE THIONG’O KAGICHA
2. EPHARUS WANJIRU MBURU
3. CHARLES MURIUNGI KARIAKI.............................APPLICANTS
VERSUS
1. THE REGISTRAR OF COMPANIES
2. THE ATTORNEY GENERAL
3. HERBERT NJUGUNA MWANGI
4. JOHN MWANGI MWAURA
5. SIMON M. MACHARIA
6. MARY WANJIRU NDUN’GU
7. LUCY M UTHONI MAINA
8. EPHANTUS KARUNGE NJUGUNA
9. AGNES NJERI MUKUNDA
10. JOSEPH MUITHE CHEGE ...............................RESPONDENTS
RULING
The Application for leave to apply for orders of certioraridirected to the Registrar of Companies to quash the proceedings of the Annual General Meeting and results of the elections of 28th June, 2013 and consequences/orders thereof, namely change of Directors filed thereafter has been made expartepursuant to the provisions of Order 53 and (2) of the Civil Procedure Rules.
It is premised on grounds that :-
The purported Annual General Meeting of 28th June,2013was void ab initio, ultra virescontrary to the law and in particular the provisions of the Companies Act, having been called only two months after the previous Annual General Meeting of the Company.
The Registrar of Companies, by her conduct or otherwise, was biased against the ex parte applicants, as they were not given an opportunity to participate, contribute or otherwise be part of the proceedings and the subsequent elections held on 28th June, 2013.
The said meeting was held in private residence of one of the interested parties who was actually elected as the Chairman of the Company.
Further, in support of the application is a Statutory Statement made by the applicants and the affidavit verifying facts stated.
Proceedings of the meeting and the consequential notice of change of directors took place on the 28th June, 2013. The application herein was filed on the 15th November 2013. Six months had not lapsed from the time the proceedings were conducted. Consequently, the application is meritorious. I therefore grant leave sought as prayed.
DATED, SIGNEDandDELIVEREDatMACHAKOSthis 12THday of FEBRUARY, 2014.
L.N. MUTENDE
JUDGE