Case ID:178066

Tigris Developers Limited v Willy Kihara Njoki Kanyotu & 2 others; Kangaita Coffee Estates Limited (Interested Party) [2021] eKLR

Case Metadata

Case Number:

Environment and Case E021 of 2021

Parties:

Tigris Developers Limited v Willy Kihara Njoki Kanyotu, Suresh Shah & Topaz Investments Limited; Kangaita Coffee Estates Limited (Interested Party)

Date Delivered:

24 Jun 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Tigris Developers Limited v Willy Kihara Njoki Kanyotu & 2 others; Kangaita Coffee Estates Limited (Interested Party) [2021] eKLR

Court Division:

Environment and Land

County:

Kiambu

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 ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO. E021 OF 2021

TIGRIS DEVELOPERS LIMITED................................................PLAINTIFF

VERSUS

WILLY KIHARA NJOKI KANYOTU ...............................1

ST

DEFENDANT

SURESH SHAH................................................................ 2

ND

DEFENDANT

TOPAZ INVESTMENTS LIMITED ................................... 3

RD

DEFENDANT

AND

KANGAITA COFFEE ESTATES LIMITED ..................INTERESTED PARTY

RULING

By a Plaint dated

18

th

February 2021,

the Plaintiff herein

Tigris Developers Ltd,

brought this suit against

Willy Kihara Njoki

and

Suresh Shah,

as Defendants. Further

Kangaita Coffee Estates Ltd,

was cited as an Interested Party. A Permanent injunction was sought against the Defendants to restrain them from any dealing over land parcel

No. LR No. 8261 (title I.R No. 9480/1).

Simultaneously, the Plaintiff filed a Notice of Motion application, even dated and sought for temporary injunction to restrain the Defendants from dealing with the above cited land parcel being

LR No. 8261.

This matter was first placed before

Lady Justice J. G. Kemei

in

Muranga, Environment and Land Court,

under Certificate of Urgency and an injunctive Order was issued in the first instance. The matter was fixed for interpartes hearing on

9

th

March 2021,

before

Thika Environment and Land Court.

However, on

5

th

March 2021,

Topaz Investments Ltd,

filed a Notice of Motion Application dated

4

th

March 2021,

and sought to be enjoined as a 3

rd

Defendant. It also sought for an order that the Court do

discharge,

vary

and/or

set aside

the Exparte temporary Injunctive Orders issued by the Court on

23

rd

February 2021.

Topaz Investments Ltd,

alleged that it is the lawful and bonafide owner of all that parcel of land known as

LR. No. 8261 (IR 9480/1),

the suit property herein which is situate West of Ruiru Township.

The said Notice of Motion dated

4

th

March 2021,

was slotted for hearing on

13

th

April 2021,

wherein on this particular date,

Topaz Investments Ltd,

was enjoined as a 3

rd

Defendant.

Further the Court directed that the two applications, that is the one dated

18

th

February 2021,

by the Plaintiff and the one dated

4

th

March 2021,

by the enjoined 3

rd

Defendant (Topaz Investments Ltd) be heard together on

11

th

May 2021.

On

7

th

April 2021,

the Law Firm of

Wahome & Akedi Advocates,

filed a Memo of Appearance dated

26

th

March 2021,

in respect of the Interested Party,

Kangaita Coffee Estates Ltd.

The Law Firm of

Ruiru Njoroge & Associates

filed a Notice of

Appointment of Advocates in respect of the 1

st

Defendant,

Willy Kihara Njoki Kanyotu

on

5

th

April, 2021.

The 2

nd

and 3

rd

Defendants are represented by the Law Firm of

Macharia-Mwangi Njeru & Co Advocates.

However, on

11

th

May 2021,

the Law Firm of

Muriu, Mungai & Co Advocates

filed a Notice of Appointment and the said Law Firm indicated that it had been appointed by

Kangaita Coffee Estates Ltd,

the Interested Party herein to act on its behalf.

Ms. Akedi,

from the Law Firm of

Wahome & Akedi Advocates

objected to the Notice of Appointment filed by the Law Firm of

Muriu, Mungai & Co. Advocates

. However,

Mr. Munge,

from the Law Firm of

Muriu, Mungai & Co. Advocates,

submitted that though their Law Firm had filed a

Notice of Appointment

, they wished to file a

Notice of Change of Advocates.

The said Notice of Change of Advocates dated

17

th

May 2021,

was indeed filed by

Muriu, Mungai & Co. Advocates,

for the Interested Party.

There being a conflict on issue of legal representation on behalf of Interested Party –

Kangaita Coffee Estates Ltd,

the Court directed that the said issue should be resolved first;

Ms. Akedi

submitted that

Mr. Munge

of

Muriu, Mungai & Co. Advocates

, had no instructions from the Interested Party to act for it and that since the matter herein involves the estate of

James Kanyotu (deceased)

who was a majority shareholder in

Kangaita Coffee Estates Ltd,

and the Law Firm of

Wahome & Akedi Advocates

has been acting for the said Estate, they should be allowed to act for the Interested Party in this matter as per their Notice of Appointment. She further submitted that

Mr. Munge

, should be barred from filing the Notice of Change of Advocates. The Court further urged the two Law Firms to sort out the issue of legal representation by the next Court appearance which was on

8

th

June 2021.

However, by

8

th

June 2021

, the two Law Firms had not sorted out the issue of representation and the Court directed each one of them to file an affidavit from its instructing client on the issue of representation.

In compliance with the above directives,

Margaret Nyakinyua Murigu,

Sworn a further affidavit dated

11

th

June 2021,

and averred that she is one of the Directors of the Interested Party herein

Kangaita Coffee Estates Ltd

, and also an Administrator of the

Estate of James Kanyotu.

She annexed a copy of Letters of Administration dated

23

rd

June 2010,

as exhibit 1.

She averred that her authority emanates from the mandate given to her by the Court vide

Succession Cause No. 1239 of 2008,

wherein the Court appointed all the three Administrators of the

Estate of James Kanyotu,

as Directors of the Companies where the deceased was the majority shareholder. That the said Order was issued by

Justice Luka Kimaru

on

13

th

March 2014,

and the said Court order was marked as exhibit 2(a) & 2(b). Further that she has since been confirmed as one of the Administrators of the

Estate of James Kanyotu,

vide Partial Confirmation of grant dated

20

th

July 2020

. That she has

Authority

and

instructions

from

Kangaita Coffee Estates Ltd,

by way of

Resolution

to sign any pleadings that pertains to the said company.

She reiterated that no instructions have been given to

Mr. Peter Munge Advocate

of the Law Firm of

MMC Asafo Advocates,

to act on behalf of

Kangaita Coffee Estates Ltd.

She urged the Court to dismiss the purported Notice of Change of Advocates, which had been irregularly filed by the Law Firm of

Muriu, Mungai & Company Advocates,

and that the Court should confirm the Law Firm of

Wahome & Akedi Advocates,

as the one that is properly on record for the Interested Party herein –

Kangaita Coffee Estates Ltd.

That

MMC Asafo Advocates,

filed a Notice of Change of Advocates without seeking a

No objection

from the Law Firm of

Wahome & Akedi Advocates.

Christopher Ngata Kariuki,

swore an affidavit dated

4

th

June 2021,

and averred that he is a Director of the Interested Party;

Kangaita Coffee Estates Ltd.

That the Interested Party was informed of this suit by their advocates on record

Muriu, Mungai & Co Advocates,

who also informed them that another Law Firm of

Wahome & Akedi Advocates,

had filed a Notice of Appointment to act on behalf of the Interested Party. Further that the Interested Party had not given any instructions to the said Law Firm of

Wahome & Akedi Advocates,

to represent it in the present suit. It was his contention that the Interested Party has retained the services of the Law Firm of

Muriu, Mungai & Co Advocates LLP,

to represent it. He annexed copies of the Companies Resolution and CR12 marked as

CK 1,

to confirm the said position. That the Interested Party has instructed the said advocates on record,

Muriu, Mungai & Co advocates LLP,

to protect their interest in this suit as per the said Company’s Resolution.

Margaret Nyakinyua Murigu,

filed a supplementary affidavit in support of her further affidavit dated

11

th

June 2021

. She annexed two documents to the said supplementary affidavit being CR 12 dated

8

th

April 1987,

which depicted the original status of shareholding and Directorship of

Kangaita Coffee Estates Ltd,

and that the late

James Kanyotu,

was the majority shareholder/Director in the said Company. She also annexed an alleged recent search dated

8

th

October 2020,

confirming the same position of the

CR 12 of 1987.

That there has been no further Orders of the Court in respect of the issue of Directorship of the said Company. Further, that by a Board Resolution dated

29

th

July 2019,

which was in compliance with the Court Orders, the three Administrators of the estate were appointed as Directors of the Company. The three Administrators are

Mary Wanjiku Kanyotu, Jane Gathoni Muraya and Margaret Nyakinyua Murigu.

Secondly, that instructions were given to the Law Firm of

Wahome & Akedi Advocates

to act on behalf of the Company (Interested Party herein). She annexed the said Resolution as

exhibit No. 3.

It was her contention that the former Directors of the Company cannot purport to give instructions on its behalf as the same is tantamount to breach of valid Court orders. That the Company further extended its instructions to the Law Firm of

Wahome & Akedi Advocates,

to act on its behalf in all other matters pertaining to

Kangaita Coffee Estates Ltd

and this case is one of them.

After filing the above affidavits, the two Law Firms also filed brief written submissions to support their respective positions.

The Law Firm of

Muriu, Mungai & Co. Advocates

, filed its submissions on

17

th

June 2021,

and submitted that the Interested Party;

Kangaita Coffee Estates Ltd

is a limited liability Company, which is registered and incorporated under the provisions of the

Companies Act, Cap 486

Laws of Kenya.

Further that after the Plaintiff instituted this suit, and joined the said Company as an Interested Party, the Directors of the said Company held a Board meeting on

4

th

June 2021,

and passed a Resolution that the Law Firm of

Muriu, Mungai & Co. Advocates,

do represent the Interested Party in the instant suit. Consequently, the Law Firm of

Muriu, Mungai & Co. Advocates (MMC)

filed a Notice of Change of Advocates on

17

th

May 2021.

It was submitted that it is trite law that a Company can only act through its Directors and the said mandate is through Resolutions of the Board of Directors. They relied on the case of

Salomon vs Salomon (1897) AC 78,

where it was held that in law, a Company is a separate person from its members. Reliance was placed in the case of

Victor Mabachi & Another… Vs…Nurturn Bates Ltd, Civil Appeal NO. 247 of 2005 [2013] eKLR

,

and

Res Desbro Engineering Ltd (2006) eKLR,

where the Court stated:-

“A limited liability Company is a legal person in law and has separate legal existence. It may act through the medium of men such as the men/women that constitute the Board of Directors. When it does so, evidence should be adduced to that effect.”

It was further submitted that

Margaret Nyakinyua Murigu,

is one of the three(3) Administrators of the Estate of

James Kanyotu (deceased)

and she has not annexed any

authority

from the other

two Administrators

, mandating her to file any pleadings and/or documents on behalf of the estate. Further, that no Resolution of the Board of Directors of the Interested Party authorizing her to sign any pleadings or issue instructions on behalf of the Company was filed. That there was no instructions from the Company instructing the Law Firm of

Wahome & Akedi Advocates,

to represent it in this instant suit being

ELC E021 of 2021

or even file any documents or pleadings thereon. It was also submitted that

Margaret Nyakinyua Murigu,

is not a Director or a members of the Board of the Interested Party. Therefore, her allegations in her affidavits are incorrect and are intended to mislead this Court. It was also their submissions that though the estates of

James Kanyotu

has three Administrators, only one of them being

Margaret Nyakinyua Murigu,

appear to have instructed the Law Firm of

Wahome & Akedi Advocates,

without any authority from the other two (2) Administrators. Thus she is acting on her own behalf and misleading the Court. They relied on

Order 9 Rule 5

of the

Civil Procedure Act

which provides:-

“A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.”

Further reliance was made in the case of

Mengich & Co. Advocates & Another vs Sot Tea Growers Savings & Credit Co-op Society Ltd & 6 Others; County Government of Bomet (Interested Party) (2021) eKLR

, where the Court held that:-

“In the matter before the Court, Notice of Change herein dated the

29

th

November 2019,

having been filed in Court on the 21

st

July 2020, and served upon the Applicant firm, was Notice enough that the 1

st

and 2

nd

Defendants had lost professional confidence in his services and as such were at liberty to instruct another lawyer of their choice …..”

It was their further submissions that the Notice of Change of Advocates dated

17

th

May 2021,

having been filed in Court on

8

th

June 2021,

and served upon the Law Firm of

Wahome & Akedi Advocates,

and all other advocates and parties on record, was

Notice

enough that the Interested Party had retained the services of Law Firm of

Muriu, Mungai & Co Advocates LLP

to protect their interests and the Court should hold as such.

On the Part of the Law Firm of

Wahome & Akedi Advocates,

it was submitted that there was no request written or otherwise from

Advocate Munge

, seeking a letter of

no objection

from the Law Firm of

Wahome & Akedi Advocates,

to take over the matter from them. That the same goes to the basic of professional ethics and practice procedure required of an advocate who obtained instructions to take in a matter.

On the issue of purported Appointment/Notice of Change of Advocates, and the affidavit dated

4

th

June 2021,

sworn by

Christopher Ngata Kariuki Kanyotu,

who claimed to swear the same in his capacity of a Director of the Interested Party, it was submitted that though in the said affidavit, there was a Resolution of the Board meeting dated

4

th

June 2021,

the same was irregular since on

13

th

March 2014,

the Court had expressed itself on the issue of interim Administrators and Directorship of the Estate Companies for the Estate of the late

James Kanyotu.

That there are no contrary orders and

Margaret Nyakinyua Murigu, Mary Wanjiku Kanyotu

and

Jane Gathoni Muraya

are still the Administrators of the estate of

James Kanyotu (deceased).

That in the Ruling of the Court dated

8

th

November 2013,

all changes that had been made in respect of shareholding of the Companies where the deceased was majority shareholder were cancelled and the shareholding reverted to the position as at

13

th

February 2008,

when the deceased (James Kanyotu) died. It was therefore submitted that the Board meeting purportedly to have taken place on

4

th

June, 2021,

was not only irregular, but the signatures appended thereto should be investigated by DCI for authenticity.

Further that in the affidavit of

Margaret Nyakinyua Murigu

dated

16

th

June 2021,

a Board Resolution minutes dated

29

th

June 2019,

were attached wherein the three Administrators of the estate of

James Kanyotu

were appointed Directors of the Company. Further the said Resolution gave instructions to the Law Firm of

Wahome & Akedi Advocates,

to act on behalf of the Company in

ELC No. 115 of 2019,

which instructions were extended to include all other litigations that pertains to

Kangaita Coffee Estates Ltd.

It was further submitted that the

Notice of Change of Advocates

by the Law Firm of

MMC

on the strength of a

Board Resolution

and meeting held by the

former Directors

cannot be accepted by this Court as a proper Change of Advocates. Therefore,

Mary Wanjiku Kanyotu

and her children are acting in blatant contempt of the Court Order.

It was further submitted that the Interested Party herein falls among the Companies whereby the Administrators have Directorship/ shareholding over the said Company until when further orders would be agreed upon or issued by this Court. The Court was urged to allow the Interested Party to continue being represented by the Law Firm of

Wahome & Akedi Advocates

which Law Firm had originally been instructed and that no prejudice shall be occasioned against the Interested Party as they shall have legal representation.

The above is the background of this case and the rival positions taken by both Law Firms of

Wahome & Akedi Advocates

and

Muriu, Mungai & Co. Advocates,

on the issue of which of the said Law Firm is the rightful legal representative or advocates for the Interested Party.

The starting point herein is that there is no doubt that every party to a suit or proceedings is entitled to a legal representation of his/her or its own choice. Further, a Court cannot dictate to a party which Law Firm should represent it. However, in choosing such representation, there are rules and procedures that should be adhered to, as provided by the

Civil Procedure Rules

and the

provisions

of the

Companies Act,

in the event that the party is a Company.

The Interested Party herein is a Limited Liability Company and it is trite law that a company is a separate person from its members or shareholders. In the case of

Assia Pharmaceuticals vs Nairobi Veterinary Centre Ltd HCCC No.391 of 2000,

Hewett J.

(as he then was)

held as follows:-

“It is settled law that where a suit is to be instituted for and on behalf of a company, there should be a company resolution to that effect…… As regards litigation by an incorporated company, the Directors are as a rule the persons who have authority to act for the company………”

Further in the case of

Bugerere Coffee Grounds Ltd vs Ssebaduka & another (1978) EA 147

it was held that:-

“When companies authorize the commencement of legal proceedings, a resolution or resolutions have to be passed either at a company Board of Directors meeting and recorded in the minutes.”

Therefore, in resolving the conflict herein, the Court will have to determine which of two Law Firms was appointed properly as per the laid down procedure relating to Companies.

As per the above quoted Courts’ decisions, it is clear that for a Company to commence any legal proceedings or even appoint a legal representative for a matter in Court, a resolution of the Board must be passed. The Law Firm of

Wahome and Akedi

Advocates

came on record on

7

th

April

2021,

and it has alleged that it was appointed by the Directors vide a Resolution that was passed on

29

th

July 2019,

wherein

Mary Wanjiku Kanyotu, Margaret Nyakinyua Murigu

and

Jane Gathoni Muraya

were introduced as Directors. Further it is clear that the Law Firm of

Wahome and Akedi Advocates

was appointed to represent the Company in

ELC No. 115 of 2019 (Thika)

.

Though it was submitted that the said Law Firm was further appointed to represent the Company in all other litigations, there was no such Resolution that was annexed to any of the affidavits of

Margaret Nyakinyua Murigu.

This position was emphasized in the case of

East African Portland Cement Ltd vs Capital Authority & Four Others Petition No. 600 of 2013 (2014)

where the Court held:-

“It takes a Companies Resolution or decision of the Board of Directors duly recorded to authorize the commencement of legal proceedings by a Company.”

The Resolution attached to the affidavit of

Margaret Nyakinyua Murigu,

is in respect of

ELC 115 of 2019

and not

ELC E021 of 2021.

Further

Margaret Nyakinyua Murigu

has averred that she is one of the Directors of the Interested Party and has authority to swear the Affidavit on behalf of the other Directors. Such authority to execute the document and or swear the affidavit on behalf of the other two Administrators or Directors was not attached. The consent of the alleged two other Directors was not attached.

On the part of the Law Firm of

Muriu, Mungai & Co Advocates,

they attached an extract of the Board meeting held on

4

th

June 2021,

wherein

Mary Wanjiku Kanyotu

, chaired the said meeting. In the said meeting, it was resolved that the Law Firm of

Muriu, Mungai & Co. Advocates LLP (MMC)

were instructed to represent the Interested Party in this case

ELC No. E021 of 2021,

filed by

Tigris Developers Ltd, vs Willy Kihara Njoki & Others.

That appointment is specifically in respect to this case.

Further

Mary Wanjiku Kanyotu

and

Christopher Ngata Kanyotu

were authorised to execute documents or affidavits necessary to defend the interest of the Company. Therefore,

Christopher Ngata Kanyotu

attached Resolutions of the Board.

However, in respect to

Margaret Nyakinyua Murigu,

there is no such authority granted to her to execute any pleadings by any Board Resolution in respect to this case being

ELC E021 of 2021.

The Court has seen

two CR 12,

filed by rival parties. The

CR12

filed by

Christopher Ngata Kanyotu

shows the list of Directors and some of these Directors were present on

4

th

June 2021,

when a Resolution was passed. Though the Court is not a document examiner, this

CR 12

has Government Emblem at the top of it.

The Court too has also seen the

CR 12

dated

8

th

October 2020,

filed by

Margaret N. Murigu.

This

CR 12

has no Government Emblem on top of it and it is just on a plain paper. The Court would hesitate to rely on it given, that the other

CR 12

dated

8

th

April 1987,

has a Government Emblem at the top of the paper (document).

This Court finds that the Interested Party Board of Directors met on

4

th

June 2021,

and passed a Resolution that the Law Firm of

Muriu,

Mungai & Co. Advocates

do represent it on this matter.

The said Law Firm of

Muriu, Mungai & Co. Advocates

filed a Notice of Change of Advocates dated

17

th

May 2021,

as provided by the law.

Order 9 Rule 5

of the

Civil Procedure Rules

provides:-

“A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.”

Once the Notice of Change was filed and served upon the outgoing advocate on record, then automatically the said outgoing Law Firm ceased being on record for the said party that had instructed for filing of Change of Advocates.

In this instant suit, the Law Firm of

Muriu, Mungai & Co. Advocates

has filed and served the

Notice of Change of Advocates

to all the parties herein as provided by

Order 9 Rule 6

which states:-

“The party giving the notice shall serve on every other party to the cause or matter (not being a party in default as to entry of appearance) and on the former advocate a copy of the notice endorsed with a memorandum stating that the notice has been duly filed in the appropriate court (naming it)”.

Therefore, this Court finds that the Law Firm of

Muriu, Mungai & Co. Advocates

is the one properly on record for the Interested Party herein;

Kangaita Coffee Estates Ltd

as per the Board Resolution of

4

th

June 2021.

The

Resolution

produced by

Margaret Nyakinyua Murigu

was only in respect of

ELC No. 115 of 2019,

and thus after the

Notice of Change of Advocates,

the Law Firm of

Wahome & Akedi Advocates

ceased being on record for the Interested Party.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 24TH DAY OF JUNE 2021.

L. GACHERU

JUDGE

24/6/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Mwangi for the 2

nd

and 3

rd

Defendants

Mr. Munge for the Interested Party

No appearance for the Plaintiff though served with the Ruling Notice.

Mr. Ruiru for the 1

st

Defendant appears on the platform but not audible.

L. GACHERU

JUDGE

24/6/2021