1. The court is seized of a Notice of Motion dated 12 March, 2025 brought by the 6th Respondent seeking, inter alia, orders striking out notices of change of advocates filed by Messrs. Mutuohoro Gakuru & Company Advocates and Messrs. Manasses Mwangi & Associates Advocates on grounds that the said law firms were not properly authorised to act for the 1st and 2nd Respondents. The Applicant further seeks a declaration that the firm of Messrs. Metto & Company Advocates is properly on record for the said Respondents.
2. The application is opposed through a replying affidavit sworn on 31 March, 2025 by the 4th Respondent, a director and shareholder of the 1st Respondent. Written submissions were filed by both the Applicant and the opposing Respondents, which I have carefully considered alongside the supporting and replying affidavits and applicable law.
Issues for Determination
3. The following issues arise for determination:
a. Whether the appointment of Messrs. Mutuohoro Gakuru & Company Advocates and Messrs. Manasses Mwangi & Associates Advocates was properly authorised by the 1st and 2nd Respondents;
b. Whether the firm of Metto & Company Advocates is properly on record;
c. Costs.
Analysis and Determination
4. The Applicant contends that the notices of change of advocates filed by the two firms were defective as the requisite board resolutions authorising their appointment were not validly passed. It is argued that the 6th Respondent, a shareholder and director of the 1st Respondent, was not served with notice of the meeting held on 29 August 2025 where the resolution to appoint counsel was allegedly passed.
5. The principle that notice to all directors is integral to the validity of corporate resolutions is well established. In Gheewala v Associated Securities Limited & 2 others (Miscellaneous Application E357 of 2023), the Court held that failure to serve notice of a board meeting to a director, where required by a company’s articles or the Companies Act, rendered any resolution passed at such a meeting invalid, absent waiver or express consent.
6. The Applicant further submits that majority shareholders cannot, by themselves, constitute the company or act unilaterally without adherence to statutory requirements. The decision in Affordable Homes Africa Ltd v Henderson & 2 Others [2004] eKLR supports the principle that corporate decisions must be made through duly convened meetings and resolutions, and that even majority shareholders cannot treat the company as their alter ego.
7. The opposing Respondents, however, argue that directors possess inherent authority to instruct advocates without a formal board resolution. This position finds support in Fubeco China Fushun v Naiposha Company Limited & 11 Others [2014] eKLR (Kenya Law), where the Court recognised that a director authorised to act on behalf of a company is presumed to have the powers of the board unless expressly limited by the articles or an overriding resolution.
8. Similarly, in Tatu Naiga & Emporium v Virjee Brothers Ltd Civil Appeal No. 8 of 2000 and United Assurance Co. Ltd v Attorney General SCCA No. 1 of 1998), Gikonyo J. reaffirmed the principle derived from Ugandan jurisprudence, notably stating:
“It does not require a board of directors, or even the general meeting of members, to sit and resolve to instruct Counsel to file proceedings on behalf … Any director, who is authorized to act on behalf of the company, unless the contrary is shown, has the powers of the board to act on behalf of that Company.”
9. It is undisputed that the 4th and 5th Respondents are directors and shareholders of the 1st and 2nd Respondents. The record from Exhbit LY 2 to LY 4 of the replying affidavit shows that a resolution, minutes, and a letter of appointment were provided by the firm of Mutuohoro Gakuru & Company Advocates. The Applicant on the other hand, has not presented evidence demonstrating that these documents were fraudulent or wholly invalidated under the Companies Act.
10. Moreover, guided by the authorities above, it is evident there is no legal requirement for a company to produce a board resolution or written authorisation in order to file suit, swear an affidavit, or appoint advocates on its behalf. It suffices that a director states under oath that they are authorised, unless contradicted by opposing evidence.
11. Where authority is however disputed, courts may, in their discretion, require further proof, such as minutes or resolutions, but there is no default assumption that the absence of a minute defeats the director’s authority. The Respondent/ Advocate filed such proof in the present matter, and in my view and the same is sufficient.
12. On the claim of lack of notice to the 6th Respondent, while proper corporate governance demands that notice be served, I reiterate that the presumption of director authority recognised in Fubeco China Fushun allows a director to engage counsel on behalf of the company unless there is express limitation. The Applicant has not provided evidence of such limitation.
13. Regarding the representation by Messrs. Metto & Company Advocates, there is no notice of appointment by authorised officers of the 1st or 2nd Respondents as required under Order 9 of the Civil Procedure Rules. The applicant firm therefore lacks demonstrable authority to act for these Respondents.
Disposition
11. From the foregoing, I find that the Applicant has not established a legal or factual basis to strike out the notices of change of advocates filed by Messrs. Mutuohoro Gakuru & Company Advocates or Messrs. Manasses Mwangi & Associates Advocates. The representation of the Respondents by these firms is not shown to be unauthorised or irregular in law.
12. Conversely, the firm of Metto & Company Advocates has not demonstrated authority to act for the 1st and 2nd Respondents.
13. Consequently, the application dated 12 March 2025 is hereby dismissed. Costs shall follow the event and are awarded to the opposing Respondents.
2. The application is opposed through a replying affidavit sworn on 31 March, 2025 by the 4th Respondent, a director and shareholder of the 1st Respondent. Written submissions were filed by both the Applicant and the opposing Respondents, which I have carefully considered alongside the supporting and replying affidavits and applicable law.
Issues for Determination
3. The following issues arise for determination:
a. Whether the appointment of Messrs. Mutuohoro Gakuru & Company Advocates and Messrs. Manasses Mwangi & Associates Advocates was properly authorised by the 1st and 2nd Respondents;
b. Whether the firm of Metto & Company Advocates is properly on record;
c. Costs.
Analysis and Determination
4. The Applicant contends that the notices of change of advocates filed by the two firms were defective as the requisite board resolutions authorising their appointment were not validly passed. It is argued that the 6th Respondent, a shareholder and director of the 1st Respondent, was not served with notice of the meeting held on 29 August 2025 where the resolution to appoint counsel was allegedly passed.
5. The principle that notice to all directors is integral to the validity of corporate resolutions is well established. In Gheewala v Associated Securities Limited & 2 others (Miscellaneous Application E357 of 2023), the Court held that failure to serve notice of a board meeting to a director, where required by a company’s articles or the Companies Act, rendered any resolution passed at such a meeting invalid, absent waiver or express consent.
6. The Applicant further submits that majority shareholders cannot, by themselves, constitute the company or act unilaterally without adherence to statutory requirements. The decision in Affordable Homes Africa Ltd v Henderson & 2 Others [2004] eKLR supports the principle that corporate decisions must be made through duly convened meetings and resolutions, and that even majority shareholders cannot treat the company as their alter ego.
7. The opposing Respondents, however, argue that directors possess inherent authority to instruct advocates without a formal board resolution. This position finds support in Fubeco China Fushun v Naiposha Company Limited & 11 Others [2014] eKLR (Kenya Law), where the Court recognised that a director authorised to act on behalf of a company is presumed to have the powers of the board unless expressly limited by the articles or an overriding resolution.
8. Similarly, in Tatu Naiga & Emporium v Virjee Brothers Ltd Civil Appeal No. 8 of 2000 and United Assurance Co. Ltd v Attorney General SCCA No. 1 of 1998), Gikonyo J. reaffirmed the principle derived from Ugandan jurisprudence, notably stating:
“It does not require a board of directors, or even the general meeting of members, to sit and resolve to instruct Counsel to file proceedings on behalf … Any director, who is authorized to act on behalf of the company, unless the contrary is shown, has the powers of the board to act on behalf of that Company.”
9. It is undisputed that the 4th and 5th Respondents are directors and shareholders of the 1st and 2nd Respondents. The record from Exhbit LY 2 to LY 4 of the replying affidavit shows that a resolution, minutes, and a letter of appointment were provided by the firm of Mutuohoro Gakuru & Company Advocates. The Applicant on the other hand, has not presented evidence demonstrating that these documents were fraudulent or wholly invalidated under the Companies Act.
10. Moreover, guided by the authorities above, it is evident there is no legal requirement for a company to produce a board resolution or written authorisation in order to file suit, swear an affidavit, or appoint advocates on its behalf. It suffices that a director states under oath that they are authorised, unless contradicted by opposing evidence.
11. Where authority is however disputed, courts may, in their discretion, require further proof, such as minutes or resolutions, but there is no default assumption that the absence of a minute defeats the director’s authority. The Respondent/ Advocate filed such proof in the present matter, and in my view and the same is sufficient.
12. On the claim of lack of notice to the 6th Respondent, while proper corporate governance demands that notice be served, I reiterate that the presumption of director authority recognised in Fubeco China Fushun allows a director to engage counsel on behalf of the company unless there is express limitation. The Applicant has not provided evidence of such limitation.
13. Regarding the representation by Messrs. Metto & Company Advocates, there is no notice of appointment by authorised officers of the 1st or 2nd Respondents as required under Order 9 of the Civil Procedure Rules. The applicant firm therefore lacks demonstrable authority to act for these Respondents.
Disposition
11. From the foregoing, I find that the Applicant has not established a legal or factual basis to strike out the notices of change of advocates filed by Messrs. Mutuohoro Gakuru & Company Advocates or Messrs. Manasses Mwangi & Associates Advocates. The representation of the Respondents by these firms is not shown to be unauthorised or irregular in law.
12. Conversely, the firm of Metto & Company Advocates has not demonstrated authority to act for the 1st and 2nd Respondents.
13. Consequently, the application dated 12 March 2025 is hereby dismissed. Costs shall follow the event and are awarded to the opposing Respondents.