[2023] KEHC 26958 (KLR)

Wendano Matuu Co Ltd & 2 others v Kioki & 6 others (Civil Suit 2 of 2014) [2023] KEHC 26958 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26958 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Suit 2 of 2014

MW Muigai, J

December 13, 2023

Between

Wendano Matuu Co Ltd

1st Plaintiff

Stephen Ndambuki Muli

2nd Plaintiff

Onesmus Muisyo Kamatu

3rd Plaintiff

and

Joshua Kimeu Kioki

1st Defendant

James Kioko Kivuvo

2nd Defendant

Johnbosco Ndinga

3rd Defendant

Samuel Mwanza Nzioka

4th Defendant

Juvenalis Musyoki Kavita

5th Defendant

Mangu Ngolo

6th Defendant

Rose Ndanu Mutua

7th Defendant

Ruling

Background Pleadings The Amended Plaint 1. Vide amended plaint dated 24th June,2020 and filed in court on 7th December,2021, wherein the Plaintiff averred that at all material times leading to this suit, the 2nd and 3rd Plaintiffs were and are the Directors of the 1st Plaintiff while the Defendants are purporting and masquerading as Directors and officials of the 1st Plaintiff.

2. It was opined that on 4th day of September,2013 the Plaintiff wrote to the office of the Registrar General at the Attorney General Offices indicating several issues pertaining the running of the Plaintiff and the intended date of the annual General meeting of the 1st Plaintiff.

3. Contending that on 11th day of November,2013 the Plaintiff wrote to the Registrar of Companies informing them of the date of the annual general meeting which was scheduled to be held on the 5th day of November,2013 and sent Notices for the Annual General Meeting of the Company to all the members. Further on 11th November,2013 the Plaintiffs canceled the initial suggested date of the Annual General Meeting of the 1st Plaintiff from 28th November,2013 to 5th December,2013 and at no time did the Plaintiffs issue their members with a Notice for an Annual General Meeting for the 28th day of November,2013 which was the date the Defendants illegally took advantage of and convened a meeting to elect themselves as the officials as the Officials of the 1st Plaintiff a fact they even discussed in the meeting as per their minutes.

4. It was averred that on realizing the intentions of the Defendants the Plaintiffs Immediately notified the Registrar of the Companies but were later informed that by time the letter was filed in their specific file the Defendants had through their cruel means and intentions obtained the file and filed their returns. Contending that on or about the 28th day of November,2013 the Defendants purportedly called and misled a few members of the 1st Plaintiff and without notice to the duly elected Directors and in their absence purportedly called for a meeting where they held elections illegally and contrary to the law and the 1st Plaintiffs rules and procedures where they purport to have been elected as directors.

5. Averring that the 2nd and 3rd Plaintiffs are still the duly elected Directors of the 1st Plaintiff and still running the affairs of the Company save for the fact that the Defendantshave now blocked the operations of Plaintiffs accounts purporting to be the genuine officials of the 1st Plaintiff.

6. Opining that the Purported Annual Returns of the 1st Plaintiff of 29th November,2013 purportedly filed by Rikan Registrars are a forgery as foremost Rikan Registrars have never been appointed as Company Secretary of the 1st Plaintiff and further the said Rikan Registrars have never duly prepared, submitted and/or filed the impugned annual returns dated 29th November,2013 at the company’s registry on behalf of the 1st Plaintiff Company.

7. Averring that the Defendants proceeded to file forged and fraudulent annual returns dated 29th November,2013 at the company’s registry where they illegally misled the Registrar of the Companies to list them as the Directors of the 1st Plaintiff.

8. The Plaintiffs highlighted particulars of fraud to include illegal convening a meeting, purporting to be duly elected Directors of the 1st Plaintiff, conducting a meeting without the authority of the 1st Plaintiff, Misleading the registrar of the Companies to issue and recognize them as the Directors of the 1st Plaintiff, carrying out the affairs of the 1st Plaintiff purporting to be the duly elected Directors, misleading the members of the 1st Plaintiff and submitting and filing forged and fraudulent annual returns dated 29th November,2013 at the Companies.

9. Averring that despite notice and intention to sue the Defendants have refused to desist from acting and masquerading as directors and officials of the 1st Plaintiff.

10. The Plaintiffs prayed for judgment against the Defendant for:i.A perpetual and permanent injunction restraining the Defendants, their agents Servants employees and or assignees from further acting, purporting to act operating and or dealing with the 1st Plaintiff’s affairs and activities and or acting as directors or officials of the 1st Plaintiff in any manner.ii.A declaration that the current Directors of the 1st Plaintiff including the 2nd and 3rd Plaintiff, as at the 28th day of November,2013 are still the legal and genuine directors and officials entitled to operate the company affairs.iii.The Inspector General of Police and/or the OCS or any other duly authorized police officer commanding the Donyo Sabuk Police Station be and is hereby directed to enforce the Decree from the Judgment hereof.iv.Costs of the suit.v.Such other or further orders the Court may deem fit to grant.

Amended Defence And Counterclaim 11. The Defendants in their amended Defence and Counterclaim filed in court on 6th May,2022 wherein the Defendants opined that the Company procedurally held an Annual General Meeting on the 28th day of November,2013 during which they were democratically elected as the Directors of the Company and subsequently they were registered by the Registrar of Companies on the 29th day of November,2013 upon being satisfied with the calling, convention and conduct of the meeting and they hold the same capacity in the Company up to date.

12. It was contended that all along they have been complaining to the Registrar of Companies that from the year 2007 when the 2nd and 3rd Plaintiffs and others who have since resigned took over the management of the Company, they have never held any General Meeting of the Company up to date and have therefore kept the members in darkness for a very long time in as far as the affairs of the Company are concerned.

13. It was the contended that the 2nd and 3rd Plaintiffs in their official communication to the Registrar of Companies dated 4th September,2013 categorically and in very unambiguous terms informed the Registrar of Companies that the Annual General Meeting of the Company will be held on the 28th day of November,2013 and went ahead to circulate copies of the same letter duly stamped as received by the office of Registrar General to the members and further averred that the alleged notice of the Annual General Meeting of 5th December,2013 purportedly issued by the 2nd and 3rd Plaintiffs is an afterthought and that no such document was either ever forwarded to the Registrar of Companies or circulated to the members through any mode of communication and put the 2nd and 3rd Plaintiffs to strict proof thereof.

14. It was opined that the members were issued with a Notice of the meeting vide a notice drafted and by John Bosco Ndinga who was a member of the Company which was widely circulated top all the members and the members who attended the meeting whose attendance lists was provided to the Registrar of Companies elected the Defendants contrary to the 2nd and 3rd Plaintiffs unfounded, malicious, callous and unsubstantiated allegations that the Defendants elected themselves.

15. Contending that all along the 2nd and 3rd Plaintiffs were aware of the meeting before its convention and even the proceedings of the meeting and the results of the elections of Directors which were widely broadcasted to the public and further hence procedural and regular.

16. Averring that the meeting of 28th November,2013 was not attended by a few members; the numbers of those that attended was as per the minutes forwarded to the Registrar of Companies to which the names and signatures were annexed. The Defendants denied the contents of paragraph ten of the Plaint and while putting the 2nd and 3rd Plaintiffs to strict proof thereof and averred that having duly been registered by the Registrar of Companies, they are in total control of the management, the running and general operations of the Company and that if the 2nd and 3rd Plaintiffs are conducting any affairs and or transactions on behalf of the Company allege, then they are so doing illegally and the general public has been sufficiently warned through the press to that effect.

17. That the 2nd and 3rd Plaintiffs have no capacity in law whatsoever to purport to lodge any suit on behalf of the 1st Plaintiff and that the 1st Plaintiff cannot sue them being its duly elected Directors.

18. The Defendants averred that the Plaintiffs suit is frivolous, vexatious and an abuse of the due process of this Honorable Court.

19. Opining that for so long as they are the duly registered Directors of the 1st Plaintiff, they are the ones seized with legal capacity to sue on behalf of the Company and thus the entire suit is fatally and or incurably defective for want of compliance with law and the basic legal procedures governing institution of proceedings under the Companies Act Chapter 486 Laws of Kenya.

20. The Defendants prayed that the Plaintiffs suit be dismissed with costs to the Defendants.

Defendants’ Counterclaim 21. In the counterclaim the Defendants averred that the Company procedurally held an Annual General Meeting on the 28th day of November,2013 during which they were democratically elected as the Directors of the Company and subsequently they were registered by the Registrar of Companies on the 29th day of November,2013 upon being satisfied with the calling, convention and conduct of the meeting and they hold the same capacity in the Company up to date.

22. Contending that they had made complaints to the Registrar of Companies concerning the management of the Company led by the 2nd and 3rd Plaintiffs and others who have since resigned from the year 2007. Thereafter, no kind of any General Meeting of the Company that has been held up to date in contravention of the Law and have therefore kept the members in darkness for a very long time in as far as the affairs of the Company are concerned.

23. It was opined that the 2nd and 3rd Plaintiffs officially communicated to the Registrar unambiguous that Annual General Meeting would be held on 28th November,2013 and on the contrary went ahead to circulate copies of the same letter duly stamped as received by the office of Registrar General Meeting of 5th December,2013 purportedly issued by the 2nd and 3rd Plaintiffs is an afterthought and that no such document was either ever forwarded to the registrar of Companies or circulated to the members through any mode of communication.

24. Averring that on noticing the delay of not issuing the notice even after the circulation of the letter dated on 4th September,2013, John Bosco Ndinga who is a member of the company went ahead and issued a notice of the meeting to the members which was widely circulated to all members and hereinafter the attendance of the meeting was according to the attendance list that was provided to the Registrar of Companies.

25. Contending that the meeting held on 28th November,2013 was attended by bonafide shareholders as per the minutes forwarded to the Registrar of Companies to which the names and signatures were annexed.

26. The defendants averred that they were duly registered by the Registrar of Companies as the directors of the 1st Plaintiff. If the 2nd and 3rd Plaintiffs claim to be the Directors of the 1st Plaintiff and in control of the management, running and general operations of the Company which they are not, any affairs or transactions purportedly to have been done by the 2nd and 3rd Plaintiffs, they are so doing illegally.

27. Contending that the proceedings before this honorable court are fatally defective as they cannot quash the CR 12 issued by the Registrar of Companies issued on 29th November,2013.

28. The Defendants prayed that the Plaintiffs’ suit against them be dismissed with costs and further by way of counterclaim prayed that judgment be entered for the Defendants against as follows:a.A perpetual and permanent injunction restraining the 2nd and 3rd Plaintiffs, their agents, Servants employees and or assignees from further acting, purporting to act, operating and or dealing with the 1st Plaintiff’s affairs and activities and or acting as directors or officials of the 1st Plaintiff in any manner.b.A declaration that the current Directors including the Defendants, as at the 28th day of November,2013 are still the legal Directors and officials entitled to manage and operate the affairs of the Company.c.The 2nd and 3rd Plaintiffs be compelled by an order of this court to surrender all Company properties including books to the current directors.d.Costs of the suits.e.Such other or further orders the court may deem fit to grant.

Reply to Amended Defence and Defence to Counterclaim 29. Vide a reply to the amended defence and defence to counterclaim dated 6th June,2022, wherein it was averred that the letter by Plaintiffs to the Registrar of Companies on 4th September,2013 was part of the Plaintiffs routine communication with the Registrar on matters pertaining the affairs of the 1st Plaintiff. If anything, it is the Defendants that have orchestrated a coup on the duly elected Directors of the 1st Plaintiff and on the strength of the fraudulent returns filed pursuantly, the Defendants have kept the affairs of the 1st Plaintiff away from the view of its members and the 1st Plaintiff’s affairs are now shrouded in mystery.

30. The Plaintiffs further reiterate the contents of Paragraphs 6 and 7 of the Amended Plaint and contended that at no time was a notice circulated to members calling for an Annual General Meeting on 28th November,2013.

31. Further in response to paragraphs 5 and 6 of the Amended Defence, the Plaintiffs averred that the 3rd Defendant, John Bosco Ndinga, had no authority to call and/or convene the Annual General Meeting on 28th November,2013 and therefore the notice circulated to members calling for such meeting was of no effect.

32. Averring that the returns filed with the Registrar of Companies arising from the illegally convened Annual General Meeting of 28th November,2013 are fraudulent and have been disowned by Rikan Registrar who confirmed that they have been appointed as Company Secretary of the 1st Plaintiff and that they never been appointed as Company Secretary of the 1st Plaintiff and that they never prepared or submitted the impugned annual returns dated 29th November,2013 as purported by the Defendants.

33. The Plaintiffs contended that the purported Preliminary Objection has since been withdrawn to pave way for hearing of the matter. In any case, the suit herein is bonafides having been instituted by the duly elected Directors of the 1st Plaintiff properly authorized.

34. The plaintiff prayed for judgment to be entered against the Defendants as prayed in the Plaint.

Defence to Counterclaim 35. The Defendants denied the Contents of paragraph 16 of the Counterclaim and averred to the contrary that the Annual General Meeting of 28th November,2013 was unprocedurally convened and therefore the purported election of the Plaintiffs threat was illegal and contrary to the 1st Defendant’s rules and procedures.

36. Paragraph 17 counterclaim was denied, reiterate their averment that it is the Plaintiffs that have orchestrated a coup on the duly elected Directors of the 1st Plaintiff and on the strength of the fraudulent returns filed pursuantly, the Plaintiffs have kept the affairs of the 1st Defendant away from the view of its members and the 1st Plaintiff’s affairs are now shrouded in mystery. Further paragraph 18 of the Counterclaim and averred that at no time was a notice circulated to members calling for an Annual General Meeting on 28th November,2013.

37. Contending that 3rd Plaintiff, John Bosco Ndinga, issued and circulated a notice of the Annual General Meeting and further that the said John Bosco Ndinga had no authority to call and/or convene the Annual General Meeting on 28th November,2013 and therefore the notice circulated to members calling for such meeting was of no effect.

38. It was opined that the 2nd and 3rd Defendant are the duly elected Directors of the 1st Defendant and are still running the affairs of the 1st Defendant. Further the Defendant contended that the Plaintiff purported to be the genuine officials and masquerading as the Directors of the 1st Defendant on the Strength of the fraudulent returns filed with the registrar of companies.

39. The defendant averred that the Plaintiffs are not entitled to the reliefs sought in the counterclaim.

Court Record 40. In summary, this matter commenced in 2014 with various applications filed by parties through Counsel heard and determined. Thereafter, the matter was slated for hearing inter partes of the main suit.

41. This Court took over the matter from Trial Court on 6/10/2021 and the Court sought to familiarize itself with the matter by perusing the Court File. Whilst there, the Advocate on record for the Defendants Mr.B.M.Nzei Advocate filed application to cease acting and the Court granted the application and he ceased acting for the Defendants on 9/11/2021.

42. On 6/12/2021, Mr Muhatia came on record, filed Notice of Change of Advocate to represent the Defendants. The Court was informed of various applications filed and pending, the Preliminary Objection filed and amendment of pleadings application was sought and was allowed.

43. On 29/3/2022, Mr Nyamweya, came on record, filed Notice of Change of Advocate to represent the Defendants and filed an application to join members of the 1st Plaintiff the Company, Wendano Matuu as interested parties and to file pleadings.

44. By consent of Plaintiff’s advocates on record, Mr Mikwa for 1st & 2nd Plaintiffs, Mr Omari for 3rd Plaintiff, the interested parties were joined. They all agreed by consent advocates of Plaintiffs Defendants & interested parties’, that all applications and P.O. are/were stayed to pave way for hearing and determination of the matter. Parties’ through Counsel engaged in filing of pleadings and/or Case Management in preparation for hearing of the dispute.

45. Hearing commenced on 18/10/2022 PW1-Stephen Ndambuki one of elected Directors of Wendano Matuu Company in 2006PW2- Bryan Joseph Muli Koli, Advocate of High court of Kenya & Certified Public Secretary who was present during Wendano Matuu Company on 28/11/2013. The matter was adjourned to 8th & 9th February 2023 and Registrar of Companies was to be summoned through DR MHC to come to Court and testify and produce physical/soft copies of the Wendano Matuu Company records held in their office.

46. On 7/2/2023, SC Charles Kanjama through Mr Muoki appeared in Court and informed the Court that they were instructed by the Defendants to represent them. The Court slated the mention on scheduled date of 8/2/2023. The matter was raised as to change of advocates for the Defendants and SC Kanjama sought adjournment of proceedings for 45 days in order to familiarize with the matter and engage in Trial Preparation.

47. Mr Omari for 3rd Plaintiff opposed the application for adjournment as it is 2014 case flagged to be heard and determined expeditiously. The matter was last in Court in November, 2022 and there was sufficient time to instruct another advocate and prepare for hearing. To instruct another advocate on the eve of the hearing is an abuse of the Court proceedings. To ask the Court to stop proceedings and forestall the hearing is to stop the expeditious disposal of the matter. He was not yet served with the Notice of Change and urged the Court to proceed with the hearing. Mr Mikwa & Mr Mwereri associated with submissions of Counsel.

48. SC Charles Kanjama reiterated that there was no disrespect intended or manifested. Mr Muoki came to Court and informed the Court on being instructed and explained why adjournment was necessary and the Court indicated the matter to be mentioned the next day. Counsel intimated that the matter involves multiple allegations of fraud that involve 2 registries that need to be investigated by the Court. There were investigations conducted by Police and the witnesses ought to come to Court and indicate their positions. This matter was delayed by Interlocutory Applications and no prejudice will be occasioned to the Plaintiffs as they are in charge of the premises.

49. The Court allowed the new advocates on record to peruse the Court file kept in custody of DR MHC and proceedings to be typed progressively and parties obtain copies through their advocates.

50. On 20/3/2023, PW3 -Naftali Mutehia Senior Clerical Officer with Business registration service Office of Registrar of Companies testified in response to the Court Summons.

51. Thereafter, Counsel sought to avail witnesses for Defendants after service of the lengthy typed proceedings and file pleadings. Counsel for Plaintiff s agreed to serve their pleadings again to expedite matters.

52. On 18/5/2023, all parties/Counsel confirmed receipt of typed proceedings.SC C. Kanjama presented List of 3 witnesses and sought to avail a further Supplementary List of Witnesses. Mr Mikwa for Plaintiff 1st & 2nd objected to any other witnesses testifying, save for the 3 witnesses as they would be prejudiced. Mr Omari reiterated that there is a reason why pleadings close, before hearing proceeds. The Court has/had given the Defendants leave to file Witness Statements upon new advocates coming on record and since the Plaintiffs closed their case, this would/will fill gaps. This is a 2014 matter and the Defense made all excuses and they are at the tail-end and the matter to proceed the buck stops here.

53. Mr Kanjama replied that the witnesses had recorded statements related to a criminal matter and those statements ought to be in these proceedings.

54. The Court granted that 3 witnesses were to testify and only the Investigation Officer shall/should be summoned to testify as Expert Witness on ongoing investigations. The rest would be determined later after the 3 witnesses testify.

55. On the same day, 18/5/2023, hearing proceeded with evidence of DW1- Joshua Kioko-Chairman of Wendano Matuu Company.

56. On 14/6/2023 DW1 recalled to testify again and was cross-examined. On 12/7/2023, DW1, Joshua Kioko was recalled to complete cross-examination. On 13/7/2023, DW1, Joshua Kioko was recalled again for further Re-examination.

57. On same day, 13/7/2023, DW2 CPL Albanus Munguti Investigation Officer of CCIO Machakos County who in answer to summons was to present Report in relation to investigations in this matter.

58. Mr Muoki sought that Peter M.Malika is substituted with another witness as he was sick admitted at St Mary’s Hospital and would not be able to testify. Mr Mikwa & Mr Mirera for Plaintiffs objected to the application for substitution, as parties and the Court are bound by pleadings. If the substitution involves a new Statement with new information, then it will prejudice the Plaintiffs who closed their case. Any substitution is of only what exists one cannot amend pleadings it would mean the Plaintiffs reopen their case.The Witness to substitute the named sick witness was not named or presented in Court.

59. This Court granted substitution of the sick witness with another on only same content nothing new or any new information introduced.

60. Mr Kanjama sought the OCS to testify as witness and Registrar of Companies too as PW2 testified only in relation to 2008-2013 and this one will testify from 2013-2017.

61. The Court allowed the substituted witness and Registrar of Companies only to testify . The OCS going by the evidence of the Investigation Officer DW2, Police Officers are not to testify in Civil matters The Court cannot compel OCS to testify. If so until a Witness Statement is availed and served to the Plaintiffs advocates and the Court will consider.

62. Mr Kanjama stated that he came on record after the Plaintiffs closed their case. They prepared List of witnesses and called DW2 to call witnesses who recorded statements and therefore a 2nd day for Supplementary List witnesses is required. There are several matters that are in issue and the witnesses will corroborate material aspects of existing witnesses and assist the Court to come to a just decision. The Application for additional witnesses was to be canvassed on the next date.

63. On 25/10/2023. DW3 Julius Masila Mathii; Chief of Matio Location testified in place of Peter M.Malika who was sick.

Application 64. Mr Kanjama renewed application to have 2 witnesses called to testify who remained in the Supplementary List. They were/are to present their statements that they recorded in another investigation. He was not asking the Court to make a finding in the ongoing investigation but to allow the evidence of James Kioko Kivuvu & Elizabeth Mutheu Mutuku.

65. Mr Mikwa for the 1st & 2nd Plaintiffs objected to the application for additional witnesses, the Plaintiffs closed their case and each party has/had a right to fair hearing which cuts across each party. The Plaintiffs closed their case a long time ago. The Witness Statements the Court is being asked to admit are not filed before this Court, they are Criminal Investigation statements taken down in relation to criminal matters. Nothing barred the witnesses from recording Statements in this case. James Kioko Kivuva is 2nd Defendant in this matter, nothing prevented him from 2013 to record file and serve Witness Statement since then to date and is now seeking Criminal investigation Statement included.

66. When the Defense Hearing commenced, the Defense sought leave to file Witness Statements and were granted on 2/5/2023. On 18/5/2023, the statements filed and there was a Supplementary List of Witnesses of 22/5/2023 Statements taken in criminal investigations. These are not Witness Statements in a Civil matter but for Criminal process with ongoing investigations. It is unfair and prejudicial to the Plaintiffs after they have closed their case for Defendants to use criminal investigations statements in this Civil matter. This will be trial by ambush with no right or opportunity to prepare for cross -examination.

67. Mr. Mirera stated that no explanation was given why statements were filed late in the day. This is the 9th Year and the Defendants ought to have filed the Statements as required under Order 7 Rule 5 CPR 2010. It will be a mockery of Civil Trial Process to admit statements recorded elsewhere and not within the Civil Process and produced long after close of Plaintiff’s case. These are Statements recorded else where without letterhead of DCI, with no formal Statements recorded, they are not signed and DW2 Investigation Officer could not confirm them. The Statements relied upon will cause untold prejudice to the Plaintiffs who closed their case a long time ago. This is a civil matter based on leadership/election of Directors of Wendano Matuu Company. These Statements are to bring new aspects to the filed case.

68. Mr Muoki in brief response stated as follows; On 18/5/2023 the list of supplementary Affidavit was admitted. The contents of statements cannot be verified. The reason is why witnesses are called is to test the veracity of the evidence. At this stage it is premature and unreliable to do so, if we do not call them we will not know what they said. The Plaintiffs will not suffer any prejudice as they will test veracity, correctness of the statements. We are not inviting the Court to make a finding of a criminal nature from the Statements. What the Witnesses intend to say is to testify of the meeting of 2013 of Wendano Matuu and the running of the Company.

69. Mr Kanjama stated Section 100 CPA allows for amendment of any error or defect in proceedings in a suit. Despite the existence of legal procedures where there is an error it can be corrected. In 2009, Parliament enacted Section 1A & 1B CPA 2010 on just expeditious proportionate and just determination of proceedings. Article 159 2 (d) CoK 2010 justice shall be administered with undue regard to technicalities We are being curtailed by fair presentation of the case or evidence. The process of the Court is to correct procedural technicalities under Order 8 CPR 2010. There have been several objections/technicalities on the Witness Statements provided and they can be dealt with as to time, form and content and confirmed by the Court with an opportunity for cross examination. The CPR does not provide specific form of Witness Statement the witness will come take oath and give evidence. We urge the Court that the Defendants suffered the disadvantage of coming to Court. A Party should not be penalized by the mistake of an advocate but have fair opportunity during the hearing. We urge the Court to allow the witnesses to give evidence on the Question of prior General meetings of the Company.

70. Mr Mirera. The placement of witnesses will not cure the prejudice on the Plaintiffs.

71. Parties/Counsel relied on oral submissions and did not file written submissions and sought this Court give Ruling on the issue of admitting witnesses, before proceeding with the rest of Witness(es).

Determination/Analysis 72. The Court considered the instant oral application by the Applicant/Defendants on whether or not to admit additional evidence of 2 witnesses in the further hearing of the Defendant’s case after the close of the Plaintiff’s case.

73. This Court is urged by able and rival submissions by parties through Counsel to ensure and uphold fair hearing, natural justice and rule of law in allowing or denying inclusion of the following witnesses to testify after the 3 witnesses who have testified for the Defendants;a.OCS of Police Station where Matuu Wendano held meetingb.Registrar of Companies to be recalled as PW2 testified on the period 2008-2013 and there is need for evidence adduced from 2013-2017c.James Kioko Kivuvo -2nd Defendantd.Elizabeth Mutheu Mutuko

74. Before determination of whether to admit additional witnesses and evidence or not, the law ought to guide the process and determination. I have taken the liberty and found the following legal provisions and case-law on the subject;a)The Constitution, Article 50(1), provides for fair hearing with regard to any dispute that has to be resolved in accordance with the law. It states as follows:“50. (1)Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.”b)Article 159 (2) (d) CoK 2010 provides that;justice shall be administered without undue regard to procedural technicalities;c)Section 1B [CPA]Duty of Court(1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings(b)The tenets of a fair hearing………………………………………………………d)Section 3A [CPA] Saving of inherent powers of court.Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.e)Section 22 [CPA]Power to order discovery and the like, Subject to such conditions and limitations as may be prescribed, the court may, at any time, either of its own motion or on the application of any party—(a)make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects, producible as evidence;(b)issue summonses to persons whose attendance is required either, to give evidence or to produce documents or such other objects as aforesaid;(c)order any fact to be proved by affidavit.f)Section 146(4) of the Evidence Act Cap 80 it is provided that:“The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.”g)Order 18 Rule 10 of the Civil Procedure Rules provides that:“The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit.”The tenets of a fair hearingh)The court, R.Nyakundi J in Pinnacle Projects Limited vs. Presbyterian Church of East Africa, Ngong Parish & another [2018] eKLR, had the following to say on Article 50 with respect to fair trial principles in civil cases:“While the wording of Article 50 of Constitution on the right to a fair hearing prima facie seems to focus on criminal trials it’s not lost that fair trial in civil cases includes: the right of access to a court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public hearing, and the right to be heard within a reasonable time.”The court went on to say:“… it is important that in any judicial process adjudication parties involved be given opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrate. It is not lost that procedural fairness is deeply ingrained in our administration of justice system.Although in particular circumstances errors, omissions, missteps and blunders are made by parties or their counsels during pretrial or in the course of trial to find appropriate balance fundamental requisite of due process of law should be accorded a purposeful meaning to protect right to a fair hearing. The Civil Procedure Act and Rules provides for time-frame rules and commitments for parties to comply with discovery; dates for closure of pleadings, filing of witness statements, production of expert material where applicable, scheduling of cases and disposition dates. Needless to say that all these commitments are aimed at each litigant to have adequate notice and fair understanding of the litigation road ahead of time disposition …”i)Murphy on Evidence 12th Edition at paragraph 17. 17 thus:“the general rule of practice, in both Criminal and Civil cases, is that every party must call all the evidence on which he proposes to rely during the presentation of his case, and before closing his case. (SeeKane {1977} 65 CR APPR 270). This involves the proposition that the parties should foresee, during their preparations for trial, what issues will be, and what evidence is available and necessary in order to deal with those issues. The definition of the issues in a Civil case, by exchange of statements of case and witnesses’ statements, is designed to enable this to be done wherever possible.” (emphasis added)j)In Oakley v Royal Bank of Canada {2013} ONSC 145 {2013} OJ NO. 109 SC. It was stated:“the Court requires the parties to mitigation to bring forward their whole case, in both civil and criminal matters, the crown or plaintiff must produce and enter in its own case all clearly relevant evidence it has. On the other hand, a trial judge has the discretion to permit a plaintiff to re-open its case. This discretion however must be exercised judicially. It must involve a scrupulous balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interest of justice.” (emphasis added)k)The dictum in Cason v State 140 MD App 379 {2001} espouses the principles such as:“Whether good cause is shown, whether the new evidence is significant; whether the jury or Judge would be likely to give undue emphasis, prejudicing the party against whom it is offered; whether the evidence is controversial in nature, and whether re-opening is at the request of the jury or Judge or a party to the claim. Or is the additional evidence new or merely to corroborate and clarify the earlier testimony.” (emphasis added)l)In Joseph Muya Njuru v Stephen Njoroge Kunda & 4 others [2019] eKLR, it was expressed thus:“…. In this instance, the defendants wish to call witnesses who were never disclosed and also seeks to rely on documents which were never discovered to the plaintiff. The plaintiff has already closed his case, and will not be able to call forth any additional evidence to counter any, that may be presented by the two officers sought to be called to testify for the defendants. To me it will defeat the very purpose why the rules on prior discovery were enacted if I am to allow the application before me, and it goes without saying, that the plaintiff will be greatly prejudiced. In any event, this suit was filed in the year 2012. The defendants had over 6 years to assess their case and see what witnesses and documents they would need to present to support their position in this matter. Whichever way you look at it, this application is coming too late in the day, and if allowed, will cause the plaintiff significant injustice.m)In the case of Hannah Wairimu Ngethe v Francis Ng’ang’a & Another {2016} eKLR, Lady Justice Achode declined to allow a petitioner in a Succession Cause to reopen the case to adduce further evidence. The Judge in the case inter alia stated:The court has also not been told where the Applicant has been for the last eight years since this cause was filed yet she was aware of it according to the Objector and has even had occasion to attend court in that regard.In my view this is an attempt by the Petitioner to have a second bite at the cherry. If he is allowed to re-open his case so as to prove it this would amount to allowing him to fill the gaps in his evidence after having heard the Objector’s case. That would be prejudicial to the Objector. - See Mombasa HCCC No. 37 of 2007 Samuel Kiti Lewa vs HFCK Ltd James M. Kagete.In the premise it is my considered view that allowing any of the two applications set out above would not only be prejudicial to the Objector but would also amount to an abuse of the court process.Both applications are therefore declined.n)In the case of Raila Odinga & 5 others v IEBC & 3 other [2013] eKLR, the Supreme Court stated as follows on the correct legal position where the Court has to consider whether to admit or reject additional evidence:“the parties have a duty to ensure they comply with their respective time lines, and the Court must adhere to its own. There must be a fair and level playing field so that no party or the Court loses the time that he/she/it is entitled to, and no extra burden should be imposed on any party or the Court as a result of omissions or characteristics which were foreseeable or could have been avoided. The other issue the Court must consider when exercising its discretion to allow a further affidavit is the nature, context of the new material intended to be provided and relied upon. If it is small or limited so that the other party is able to respond to it, then the Court ought to be considerate, taking into account all aspects of the matter. However, if the new material is so substantial involving not only a further affidavit but massive additional evidence, so as to make it difficult or impossible for the other party to respond effectively, the Court must act with abundant caution and care in the exercise of its discretion to grant leave for the filing of further affidavits and or admissions of additional evidence.”Parties bound by pleadingso)In Galaxy Paints Company Limited V. Falcon Guards Limited Court of Appeal Case Number 219 OF 1998, the Court of Appeal stated that“issues for determination in a suit generally flow from the pleadings and unless the pleadings are amended in accordance with the Civil Procedure Rules, the trial court by dint of the aforesaid rules may only pronounce judgment on the issues arising from the pleadings or such issues as the parties have framed for the court’s determination.”

75. The legal provisions and case-law mandate upholding tenets of fair trial in all Court proceedings and for all parties. These tenets include; participatory procedures in the proceedings; an independent and competent umpire or adjudicator; prior due process before judgment & continuity fair trial rights to attach at all stages of the hearing.

76. Parties file pleadings that set out their cause of action/claim, events leading to the breach of legal right and redress and these pleadings are served and exchanged and filed in court. So that once pleadings close all parties have a fair idea of what the dispute entails. Parties frame through pleadings joint /separate issues for determination.

77. Once it is agreed by parties through Counsel on how to proceed, parties through Counsel where a full hearing shall ensue will before then engage in Pre-Trial/case management processes as envisaged by Order 11 CPR 2010. Thereafter, hearing commences. This is an ideal hearing except where new parties seek to be joined, or change of advocates or additional evidence and/or recall of witnesses is envisaged.

78. This matter was filed 2013 and the pleadings summarized above depict contested elections and leadership of Wendano Matuu Company. The issue of fraud relates to conduct of elections of 28/11/2013 and filing of Returns.The matter entailed various interlocutory applications and Preliminary Objection, hearing by different Trial Courts and several change of Advocates of parties.

79. With this back ground on settling the various preliminary issues on hearing of the matter by consents of advocates on behalf of parties the hearing of the substantive suit commenced 3 witnesses by the Plaintiffs testified and closed their case. When it was Defendants turn, there was change of guard and as in each time Counsel for Defendants was/is changed, perusal of the Court file, service of pleadings and typed proceedings are availed/exchanged.

80. In this instance, this Court granted the advocates for the Defendants on record to file and exchange Witness Statements, amidst objections.

81. This Court on 18/5/2023 accepted the 3 witnesses presented by Counsel for Defendants to testify but a Supplementary List was brought forth and Plaintiffs advocates objected to the extra witnesses as they had closed their case. This Court added the witness- Investigation Officer of Criminal investigations that relate to this case and the rest were subject to the instant Ruling.

82. This matter has been in Court for almost 10 years now and parties albeit various difficulties have cooperated and proceeded to/with hearing of the matter.

83. The OCS who is sought to be called as a witness is not named , no Witness statement is filed in Court and the Statement is not served to Plaintiffs. Of importance DW11, Investigation Officer in a related matter summoned by this Court on request by the Defendants was categorical that the Police were served with a Circular that no Police Officer should be involved in a civil matter and could there fore not testify. Similarly, calling the OCS who is not named nor filed Witness Statement will be futile as a Police Officer and going by the Circular he cannot testify in a civil matter.

84. The Recall of witnesses is provided for by Section 146(2) of Evidence Act & Order 18 Rule 10 CPR 2010In Techbiz Limited V Royal Media Services Limited [2021] eKLR, the Court observed at para 29 and 36 that:“29. It is noteworthy that the application before me was filed after the close of both the applicant’s and the respondent’s cases and after parties had taken directions on the filing of written submissions. In determining an application such as the present one, this court needs to find out why the witnesses were not availed before the close of the rival cases. It must also be demonstrated that failure to avail the said evidence was not deliberate. Bearing in mind that this Court has discretion to grant or decline to grant an order on the re-opening of a case, the said discretion must be exercised judiciously.”

36…. The powers to make orders for reopening of cases for purposes of calling additional witnesses is a matter exercised under the inherent powers of the Court as per the provisions of Section 3A of the Civil Procedure Act. It is a matter that calls for the Court to grant such orders in the interest of justice so that all the evidence available to the parties can be put before a Court for consideration and determination.

85. The application to have the Registrar of Companies to be recalled as PW2 testified on the period 2008-2013 and there is need for evidence adduced with regard to Wendano Matuu Company from 2013-2017. This court confirmed from the record that PW2 testified with regard to 2008-2013 only and the dispute relates to 2013-2017,and therefore in the interest of justice the recall of Registrar of Companies for additional evidence on the Wendano Matuu Company is justified.

86. James Kioko Kivuvo -2nd Defendant is a party to these proceedings since filing of the case in 2013 and filed Defence & Amended Defence. He among other Defendants has been represented by Legal Counsel throughout the proceedings. He seeks to import a Statement recorded during criminal investigations as his evidence in Civil proceedings with no explanation to warrant exercise of the Court’s judicial discretion. The Statement is not signed nor confirmed its source save that it relates to criminal proceedings no attempt is made to file Witness Statement in civil proceedings. This Court granted leave for Defendants to file pleadings and statements, 1st Defendant Joshua Kimeu Kioko who also recorded Statements for criminal investigations also recorded filed and served Witness Statement and bundle of documents on 3/2/2023 and testified in Court.

87. Criminal Proceedings and civil proceedings may proceed in the same subject-matter as envisaged by Section 193A CPC Concurrent criminal and civil proceedingsNotwithstanding the provisions of any other written law, the fact that any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings shall not be a ground for any stay, prohibition or delay of the criminal proceedings.

88. Whereas, fair hearing entails participating proceedings and having an opportunity to be heard and with leave of the Court adduce additional evidence, fair hearing cuts across all parties. The Plaintiffs closed their case, the 2nd Defendant throughout these proceedings did not offer any Witness Statement to be relied on as his evidence. Thirdly, the contents of a Statement recorded for criminal investigations would amount to an ambush on the Plaintiffs, the pleadings do not entail criminal aspects and as the Defendants advocates informed this Court it cannot/lacks jurisdiction to rely on the evidence and make findings of a criminal process in the instant matter. The criminal investigations and proceedings may go on even as civil matter is ongoing on the same subject matter. The statements in the investigations imported into the civil proceedings would be prejudicial to the Plaintiffs and this Court cannot make any determination on the same. The request to have 2nd Defendant testify relying on the Statement recorded in criminal investigations is not granted.

89. Elizabeth Mutheu Mutuko; similarly, another witness who was never listed nor Witness statement filed served in civil proceedings. There are close to 15-20 Statements in the 1st 2nd 5th & 7th Defendants Supplementary List of Statements filed on 22/5/2023. These Statements are related to criminal investigations; which this Court will not interfere or address as the matter herein is civil in nature. No explanation is given why Witness Statements were not filed and served for hearing in civil proceedings.

90. This Court is persuaded to rely on Section 100 CPA & Article 159 2 (d) CoK 2010, to correct the anomaly and allow the Statements in Criminal investigations as evidence in civil proceedings. There is specific procedure on filing and exchanging pleadings on the scope of the dispute and filing and exchanging Witness Statements and List of Documents.

91. Section 22 CPA& Order 11 CPR2010 prescribe the right of each party to prepare and ventilate their case through Case -Management/Pre-Trial process. Even then when not done as in this case, the Court granted the Defendants the opportunity to prepare, file and serve statements and documents, those that complied as DW1 Joshua Kimeu Mutuku has been heard.

Disposition 1)All parties are entitled to fair hearing- fairness across the board in access to a court, the right to be heard and the right to adduce and challenge evidence go hand in hand; inasmuch as the Defendants want the Court to allow evidence from ongoing criminal investigations after the Plaintiff closed its case, this Court ought to also protect the Plaintiff’s right to challenge such new evidence introduced at the eleventh hour, they will be prejudiced.

2)In the absence of any explanation why for 9-10 years Pre-Trial /Case management was not done and when done why Witness Statements from criminal investigations are introduced in Civil trial, this Court cannot grant application of additional evidence and witnesses except the evidence of Registrar of Companies.

It is so ordered.

RULING DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 13/12/2023. (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIn The Presence Of;Mr Njiru H/b Mr Gitonga for 1st 2nd & 3rd PlaintiffsMr. Muoki H/b Sc C Kanjama for 1st 2nd 5th & 7th DeftsMr Mutembei For Interested Parties; We want to file application.Court: The Court will have the Ruling delivered physically to Machakos on Monday 18/12/2023. Thereafter, the matter will be mentioned before DRMHC on 26/1/2023 on any urgent application. Then mention in Court on 8/2/2014.