[2023] KEHC 26439 (KLR)

Sciommeri v Tasmac Limited & 4 others (Civil Suit E006 of 2023) [2023] KEHC 26439 (KLR) (15 December 2023) (Directions)

Neutral citation: [2023] KEHC 26439 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Suit E006 of 2023

SM Githinji, J

December 15, 2023

Between

Ruggero Sciommeri

Plaintiff

and

Tasmac Limited

1st Defendant

Mohamed Abdi Mohamed

2nd Defendant

Registrar of Companies

3rd Defendant

Nassau Limited

4th Defendant

Hannington Baraza Wanjala

5th Defendant

Directions

1. The court has been called upon to settle the issue of representation of the 4th Defendant. The duel is between the firm of Kilonzo Aziz & Co Advocates, Mogaka Bwongaki & Company advocates and Rene & Hans LLP advocates. The firm of Kilonzo Aziz & Co advocates, through Mr.Kilonzo, state that they represent the 4th Defendant. The firm of Mogaka Bwongaki through Mr. Mogaka state that they represent the 1st, 2nd and 4th Defendants. The firm of Rene & Hans on their part state that they represent the 2nd and 4th Defendants. The question then is, who rightfully represents the 4th Defendant?

2. On 7th November 2023, the court upon hearing all counsel in this matter directed that the 4th Defendant’s Company Secretary be summoned to appear on the next mention date with all necessary documents or evidence relating to the company representation in this matter.

3. The matter then came up for mention on 15th November 2023. Mr. Kilonzo informed the court that the Company Secretary had written a letter to the court addressed to the DR indicating who represents the 4th Defendant. He also told the court that the Company Secretary was unable to attend court as had been directed as he is 87 years old and the road was bad due to the rains. He added that the Interested Party had filed an affidavit of verification detailing the appointment of a Company Secretary and the appointment of his firm to solely represent the 4th Defendant.

4. Mr. Mogaka made his submissions detailing the genesis of the present suit. He added that he had filed a letter from the Company Secretary confirming his firm and Rene as the appointed advocates to represent the 4th Defendant.

Disposition 5. I have examined the two letters filed by Mr. Kilonzo and Mr. Mogaka respectively. In order for me to determine who represents the 4th Defendant, I first have to determine who the 4th Defendant’s Company Secretary is.

6. Mr. Mogaka filed a letter dated 14th November 2023. Attached to the letter, is a formal communication from Ewise Corporate Advisory signed by one Augustine Kinuthia Murathi, CS.

7. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya provides that:“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

8. This is called the legal burden of proof. There is however, evidential burden of proof which is captured in sections 109 and 112 of the same Act as follows:“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of the fact shall lie on any particular person.112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.”

9. The two provisions were addressed in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under section 107 (1) of theEvidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that places upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

10. Having examined the documentary evidence by the advocates herein, the evidence by Mr. Mogaka is that of a letter by Ewise corporate Advisory signed by Augustine Kinuthia Murathi CS, allegedly the 4th Defendant’s Company Secretary. On his part, Mr. Kilonzo filed a letter which is a certificate of confirmation signed by Najmuddin Hassanali Mohammedali Noorbhai as the Company Secretary of the 4th Defendant. Further, Mr.Kilonzo filed the company’s resolution dated 16th December 2022 wherein the firm of Kilonzo Aziz & Company advocates was appointed as the advocates of the 4th Defendant.

11. Looking at the two letters that purportedly appoint both firms by different Company Secretary, the question is who is the legitimate Company Secretary? The documents filed by Mr. Mogaka, do not demonstrate when Augustine Kinuthia Murathi was appointed as the Company Secretary. Mr. Kilonzo on the other hand, filed a copy of form No. 203A which indicates that Mr. Najmuddin Hassanali Mohammedali Noorbhai was appointed as the Company Secretary with effect from 3oth September 2012. Further, there are copies of tax returns filed on behalf of the 4th Defendant by him in his capacity as the Company secretary. There is no evidence that there was ever another appointment that cancelled or replaced his. Resting on the weight of the provided evidence, I am of the view that Mr. Kilonzo satisfactorily demonstrated that Mr. Noorbhai is still the company secretary of the 4th Defendant thus the only person who could confirm the appointment of the firm representing the 4th Defendant. Consequently, I find that Mr.Kilonzo has demonstrated on a balance of probabilities that the firm of Kilonzo Aziz & Co. advocates was duly appointed to represent the 4th Defendant in this matter. I take him to be the Advocate rightfully representing the 4th Defendant.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 15TH DAY OF DECEMBER, 2023. ...................................S.M. GITHINJIJUDGEIn the Presence of; -1. Mr Mogaka for the 1st, 2nd and contested 4th Defendant2. Miss Oloo holding brief for Mr Kilonzo for the 4th Defendant, the contested party