Case ID:158978

Geoffrey Nganga Tambara v Radio Frequency Systems Ltd & 2 others [2020] eKLR

Case Metadata

Case Number:

Cause 737 of 2019

Parties:

Geoffrey Nganga Tambara v Radio Frequency Systems Ltd, Simon Horner & Micheal John Mwaura

Date Delivered:

05 Jun 2020

Case Class:

Civil

Court:

Employment and Labour Relations Court at Nairobi

Case Action:

Ruling

Judge(s):

Radido Stephen Okiyo

Citation:

Geoffrey Nganga Tambara v Radio Frequency Systems Ltd & 2 others [2020] eKLR

Advocates:

Mr. Andiwo instructed by O & M Law Advocates

for the Claimant

Mr. Midenga instructed by Midenga & Co. Advocates for the 2nd Respondent

Mr. Cheloti instructed by Cheloti Karanja Advocates for the 3rd Respondent

Court Division:

Employment and Labour Relations

County:

Nairobi

Advocates:

Mr. Andiwo instructed by O & M Law Advocates

for the Claimant

Mr. Midenga instructed by Midenga & Co. Advocates for the 2nd Respondent

Mr. Cheloti instructed by Cheloti Karanja Advocates for the 3rd Respondent

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

CAUSE NO. 737 OF 2019

GEOFFREY NGANGA TAMBARA................................CLAIMANT

VERSUS

RADIO FREQUENCY SYSTEMS LTD..............1

st

RESPONDENT

SIMON HORNER.................................................2

nd

RESPONDENT

MICHEAL JOHN MWAUR................................3

rd

RESPONDENT

RULING

1. Geoffrey Nganga Tambara (Claimant) commenced legal proceedings against the Respondents on 1 November 2019 alleging breach of contract and unfair termination of employment.

2. On 10 December 2019, the Claimant filed a motion under a certificate of urgency seeking certain interim reliefs.

3. The Claimant also sought an order allowing him to serve the Respondents through substituted service.

4. Upon service, the 1

st

and 2

nd

Respondents entered a

Memorandum of Appearance

through the firm of Midenga & Co. Advocates on 24 December 2019.

5. On 18 January 2020, the firm of Cheloti Karanja Advocates filed a

Memorandum of Appearance

to come on record for the 1

st

and 3

rd

Respondents.

6. When the Claimant’s application came up for hearing on 16 January 2020, a dispute arose between Mr. Midenga and Mr. Cheloti as to the representation of the 1

st

Respondent.

7. The Court consequently directed Mr. Cheloti to file an affidavit to demonstrate that he had instructions to represent the 1

st

Respondent.

8. The Claimant was also granted leave to file a further affidavit ahead of hearing on 13 February 2020.

9. The 3

rd

Respondent filed an affidavit on 24 January 2020 together with case law digest, and the Court heard arguments on 13 February 2020 (Ruling was reserved for 17 March 2020 but because of the intervening declaration of COVID19 pandemic, it could not be delivered. The Deputy Registrar, however, gave parties notice of the delivery of this Ruling in Court but they did not respond).

10. A fresh invitation was sent to the parties on the delivery of the Ruling through video link.

11. It is not in dispute that a vicious war has been going on in this Court are differently constituted and the High Court between the 2

nd

and 3

rd

Respondents who directors of the 1st Respondent.

12. The High Court, in High Court Misc Civil Application No. 393 of 2017,

Simon Horner v Michael Njuguna Mwaura & Ors

(2018) eKLR addressed the question of the 1

st

Respondent’s directorship and found that the 3

rd

Respondent had fraudulently caused a change in the shareholding of the 1

st

Respondent and ordered the rectification of the records.

13. This Court differently constituted in Cause No. 305 of 2019,

Jackson Mutiso Mwalali & Ors v Radio Frequency Systems Ltd

found on 19 July 2019 that the 3

rd

Respondent as a director of the 1

st

Respondent had the authority to instruct an advocate to act on its behalf.

14. The Court now finds itself confronted with a dispute as which of the directors of the 1

st

Respondent has the authority to instruct an advocate to act on its behalf.

15. The 3

rd

Respondent urges the Court to follow the path by Court in the

Jackson Mwalali case

and hold that he has the authority to instruct advocates to act for the 1

st

Respondent and that it is the firm of Cheloti Karanja Advocates which is properly instructed to be on the record.

16. He further asserted that as the Executive Director of the 1

st

Respondent he had the authority to instruct an advocate to act on its behalf.

17. The 2

nd

Respondent, on the other hand, contended that as the majority shareholder and Chief Executive Officer of the 1

st

Respondent, he has the authority to instruct the firm of Midenga & Co. Advocates to act on its behalf.

18. The 2

nd

Respondent relied on a decision of this Court (differently constituted) rendered on 14 October 2019 in Cause No. 567 of 2019,

Nehemiah Kiprop Kiplagat & Ors v Radio Frequency Systems Ltd

endorsing the conclusion by the High Court that he was the Chief Executive Officer of the 1

st

Respondent with the proper mandate to instruct an advocate to act.

19. Apart from the Court decisions, the Court has looked at the

Articles of Association

of the 1

st

Respondent. It does not provide for the position of Executive Director and therefore the 3

rd

Respondent cannot purport to instruct an advocate on the basis of such a non-existent executive directorship.

20. Clause 13 of the Articles of Association provides for the manner of making a decision. It states that shareholders would have equal votes subject to shareholding.

21. It is not in dispute that in terms of the High Court judgment, the 2

nd

Respondent has more shares than the 3

rd

Respondent.

22. Impliedly and logically, were a vote in respect to the instructing an advocate to act on behalf of the 1

st

Respondent, the 2

nd

Respondent vote would triumph having the majority shares.

23. The Court, therefore, finds that it is the advocate instructed by the 2

nd

Respondent who is properly on record for the 1

st

Respondent.

24. Before concluding, it would be remiss for the Court not to observe that the 2

nd

and 3

rd

Respondents vicious war over the control of the 1

st

Respondent in light of the findings by the High Court may not bode well for the 1

st

Respondent, and more so when no appeal has been preferred against the judgment.

25. Further, the continued battles over the control over the 1

st

Respondent within the employment arena has the probability of leading to conflicting and out-rightly inconsistent legal conclusions to the detriment of the parties.

26. The 2

nd

and 3

rd

Respondents should also look keenly at the definition of an

employer

in section 2 of the Employment Act, 2007 as they persist in the boardroom battle and the effects execution of a judgment may have on them as individual directors.

27. On the basis of the foregoing, the Court finds that

Midenga & Co. Advocates,

having been instructed by the 2

nd

Respondent, the majority shareholder of the 1

st

Respondent is properly on record for both the 1

st

and 2

nd

Respondents.

28. The firm of Cheloti Karanja Advocates will in effect continue acting for the 3

rd

Respondent.

29. The pending application on record and the Cause should now be processed for hearing.

Delivered through Microsoft teams/email, dated and signed in Nairobi on this 5

th

day of June 2020.

Radido Stephen

Judge

Appearances

For Claimant Mr. Andiwo instructed by O & M Law Advocates

For 2

nd

Respondent Mr. Midenga instructed by Midenga & Co. Advocates

For 3

rd

Respondent Mr. Cheloti instructed by Cheloti Karanja Advocates

Court Assistant Judy Maina