[2000] KECA 112 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT NAIROBI

CORAM: KWACH, J.A (IN CHAMBERS)

CIVIL APPLICATION NO. NAI.13 OF 2000 (5/2000 UR)

BETWEEN

MBO-I-KAMITI FARMERS CO. LTD ..................... 1ST

MBO-I-KAMITI FARMERS CO. LTD...............................2ND

HARRISON GICHARU NG'ANG'A.................................3RD

EDWARD NDUNGU MEREKA.....................................4TH

JOSEPH KIMANI MBUGUA...........................................5TH

GEOFFREY NGIGI MWANGI.........................................6TH APPLICANTS

KARORI MANYEKI

AND

SIMON MWANGI NGERU.............................1ST

THUO MATHENGE..........................2ND

JOSEPH GITHUA MWANGI.............................3RD

DAVID MUTURI GACHUIRI...............................4TH

JOHNSTONE KIIYURU NJOROGE......................5TH

GRACE MUTHONI GAKUMO.................................6TH

PHILIP MAINA WAWERU...................................7TH RESPONDENTS

(Being an application for extension of time to file

an appeal out of time against an Order of Mandamus

issued by the High Court of Kenya at Nairobi (Hon.

Justice Oguk) dated 19th July, 1999

in

H.C. MISC. APPLICATION NO. 846 OF 1999)

***************************

R U L I N G

This is an application under rule 4 of the Court of Appeal Rules (the Rules) for extension of time to lodge a Notice of Appeal and a Record of Appeal . The application has been brought by Mboi Kamiti Farmers Company Limited (the Company) , Harrison Ng’ang’a, Edward Mere ka, Joseph Mbugua, Geoffrey Mwangi and Karori Manyeki (the applicants) . The decision against which they want to appeal was given by Oguk J on 19th July, 1999.

Simon Ngeru, Thuo Mathenge, Joseph Mwangi, David Gathuiri , Johnston Njoroge, Grace Gakomo and P hilip Waweru (the respondents) claimed to have been elected as directors of the Company at a Special General Meeting of the members. Apparently they were refused registration by the Registrar of Companies and on 13th July, 1999 they filed a Notice of Motion in the superior court seeking an order of mandamus to compel the “Registrar - General” to register them as directors of the Company. The applicants who were the directors at the time were not made a party to the proceedings nor was the Company joined or served.

The application was heard and determined without the applicants being given an opportunity to be heard. The applicants learnt about the decision soon after it had been made and instructed an Advocate to act for them. Instead of filing a notice of appeal under rule 74of the Rules the Advocate decided to apply to the superior court to set aside the decision. That application was dismissed by Mitey J who in an attempt to inject some semblance of order into this turbulent company ordered fresh elections to be held and I understand that these are underway. Having failed to have the decision of Oguk J set aside the applicants now want to go back to the starting line and lodge an appeal.

Mr Ngatia for the applicants submitted that the intended appeal raises important issues of law one of which relates to the validity of the procedure used by the respondents to obtain the order of mandamus. And also the fact that the applicants were denied a hearing. All this may be true but the fact remains that the elections which triggered off the present dispute are now water under the bridge and were the applicants to succeed in their intended appeal, it would be just a pyrric victory.

In the final analysis, I agree with Mr Kosgei , for the respondents, that the delay in bringing this application has not been satisfactorily explained. For that reason, I decline to exercise my discretion in favour of the applicants and dismiss the application with costs.

Dated and delivered at Nairobi this 17th day of March, 2000.

R. O. KWACH

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISRAR