1. This ruling on the the motions dated 7.3.25, 22. 6 2025, 18.3.25 and validy of CR 12 dated 29.7.25. Directions on all the said applications were taken on diverse dates.
2. On 29.7. 2025, this Court ordered that the parties file submissions regarding the CR12 filed on the same date by the 5th defendant . I take the liberty to determine all the applications herein to expedite the matter.
3. A CR12 dated on 27.7.25 was filed by the 5th defendant and lists 13 directors/shareholders, each holding 1 ordinary share, as follows:
o John Kenyaga Mochama
o Wilson Ogucha Nyamwange
o Dorcas Moraa Onchwati
o Zablon O. Ombongi
o William Onsongo Mayaka
o Hezekiah Amoro Nyatangi
o Samwel Monda Nyongoki Ondora
o Kevah Nyakundi Gadinari
o Aondo Onchiri
o Donald Borongo Mochama
o William Ombogo Matundura
o Mary Nyaboke Ratemo
o Richard Momanyi Nyamari
4. A previous CR12 dated April 25, 2018, indicated the following directors at that time:
o Dorcas Moraa Onchwati
o Kevah Nyakundi Gadinar
o Aondo Onchiri
o Zablon O Ombongi
o Samuel Monda Nyongoki Ondora
o William Ombogo Matundura
o William Onsongo Mayaka
o Wilson Ogucha Nyamwange
o Mary Nyaboke Ratemo
o John Kenyaga Mochama
o Donald Borongo Mochama
o Hezekiah Amoro Nyatangi
5. Additionally a CR12 dated October 13, 2023, was declared fraudulent by this Court in its ruling dated 22.10.24.
6. The 5th defendant filed a new CR12 dated July 29, 2025 which includes two new names:
o Richard Momanyi Nyamari (Director/Shareholder)
o Joseph Mboya Awino (Company Secretary)
7. The 2nd & 3rd defendants submissions indicate that the CR12 dated 29.7. 2025, is accurate except for the inclusion of the two new names i.e
Richard Momanyi Nyamari (Director/Shareholder )and Joseph Mboya Awino (Company Secretary).
8. The 2nd 3rd defendants requested the court to remove these names to accurately reflect the true directors of the company.
9. It is thus clear that there is still a dispute as to who the directors of the company are and this is a matter for trial .
Applications dated 7.3.25 and 22.6.25
10. I now turn to the two related applications. The first is the plaintiff’s Notice of Motion dated 7th March, 2025. The second is the application dated 22nd June, 2025, which was filed by 2nd, 3rd and 4th defendants in opposition to the plaintiff’s application dated 7.3.25.
11. The plaintiff’s application dated 7th March, 2025 seeks, in substance, orders that the suit against the 1st defendant be marked as having abated; that the plaintiff be granted leave to withdraw the suit against the 2nd and 5th defendants; and that the costs of the application be in the cause.
12. The application is supported by the affidavit of Wilson Ogucha Nyamwange, who describes himself as a director of the plaintiff company. He deposes that the directors of the plaintiff met, resolved their differences and passed a resolution to terminate the present suit. He further states that a consent was entered into and filed in court. The plaintiff’s position is that the 1st defendant passed away over one year ago, that the suit against him has abated, and that the plaintiff no longer has a maintainable claim against the 2nd and 5th defendants.
13. The plaintiff relies on a resolution dated 8th January, 2025, said to have been signed by Wilson Ogucha Nyamwange, Mary Nyaboke Ratemo, Richard Momanyi Nyamari, William Ombogo Matundura and Donald Barongo Mochama. The resolution purports to appoint M/s Nyamurongi & Company Advocates to take over the conduct of the suit and to authorise the withdrawal of Kisii HCCC No. 13 of 2018.
14. The plaintiff also relies on the draft consent order dated 9th January, 2025, by which certain orders relating to the operation of a bank account were to be vacated, new signatories appointed, and the suit marked as settled as between the plaintiff and the 3rd and 4th defendants.
15. The said application dated 22nd June, 2025 supported by the further affidavit of William Ombogo Matundura challenges the plaintiff’s application. The response raises questions regarding the capacity of M/s Nyamurongi & Company Advocates to act for the plaintiff, the validity of the alleged company resolution, and the propriety of allowing the suit to be withdrawn or compromised in circumstances where the directorship and control of the plaintiff company remain disputed.
16. In the affidavit in reply sworn by Wilson Ogucha Nyamwange on 16th September, 2025, he maintains that the 3rd and 4th defendants, being defendants in this matter, cannot purport to choose advocates for the plaintiff or speak for the plaintiff company in this suit. He further deposes that the 4th defendant is now deceased, having passed away on 9th September, 2025. He also refers to the affidavit of Penuel Nyagaka Barongo, son of the late Donald Barongo Mochama, who challenges the authenticity of a further affidavit allegedly sworn by the late Donald Barongo Mochama on 22nd July, 2025.
17. Penuel Nyagaka Barongo deposes that his late father was admitted at Nyanchwa Adventist Mission Hospital on 18th July, 2025, discharged on 3rd August, 2025, and later passed away on 9th September, 2025. He further states that the signature appearing on the further affidavit allegedly sworn by his late father on 22nd July, 2025 was not his father’s signature.
18. From the material placed before the Court, the issues that arise for determination are: first, whether the suit against the 1st defendant has abated; second, whether leave should be granted to withdraw the suit against the 2nd and 5th defendants; third, whether the alleged resolution and consent can be relied upon at this stage; and fourth, what orders should issue on the application dated 22nd June, 2025.
19. On the first issue, the plaintiff’s position is that the 1st defendant passed away over one year ago and that no substitution was made within the time prescribed by law. Under Order 24 of the Civil Procedure Rules, where a suit survives against a deceased defendant but no application for substitution is made within one year, the suit abates as against the deceased defendant. I will deal with the issue later in this ruling .
20. The second issue concerns the plaintiff’s prayer for leave to withdraw the suit against the 2nd and 5th defendants. The plaintiff’s view is that since matter has been pending since 2018 and appears not to have been set down for hearing, the plaintiff seeks leave of the Court under Order 25 rule 2 of the Civil Procedure Rules. The grant of such leave is discretionary.
21. In ordinary circumstances, a plaintiff is entitled to discontinue or withdraw a claim. However, where the withdrawal is opposed and where the authority of the persons purporting to act for a corporate plaintiff is seriously contested, the Court must be slow to permit a withdrawal that may have the effect of determining substantive rights before the main dispute is heard.
22. This suit concerns, among other things, the control, management and directorship of Ibacho Trading Company Limited. The persons said to have allegedly authorised the withdrawal include persons who are themselves parties to the dispute or whose authority is being questioned. The Court cannot ignore the fact that the alleged resolution and consent have been challenged.
23. A company acts through its lawful organs. Where there is a dispute as to who the lawful directors or authorised representatives of the company are, the Court must be satisfied that any act purporting to withdraw, compromise or settle litigation on behalf of the company has been properly authorised.
24. The resolution dated 8th January, 2025 and the consent dated 9th January, 2025 raise serious questions. The consent purports to settle the suit as between the plaintiff and the 3rd and 4th defendants and to appoint signatories to the of a company’s Equity bank account. The Court has also been presented with allegations touching on the authenticity of signatures and the capacity of one of the signatories, now deceased.
25. The law on consent orders is settled. A consent order has the effect of a contract between the parties and may only be interfered with on grounds that would justify the setting aside of a contract, including fraud, mistake, misrepresentation, collusion, lack of authority or any other sufficient cause. Where authority to enter into the consent is disputed, the Court must first be satisfied that the consent was validly entered into before adopting the same .
26. In the present matter, the authority of those who allegedly instructed counsel and executed the resolution and consent is contested. William Ombongo Matundura, who allegedly signed it has denied doing so in his affidavit dated 14.3.25.
27. Donald Borongo Mochama, who allegedly signed the resolution dated January 8, 2025, and the consent, passed away on 9.9. 2025, as per the affidavit of his son, Penuel Nyagaka Barongo, dated 16.9. 2025. This affidavit states that his father did not sign the further affidavit dated 22.7.2025, as he was hospitalised from 18.7. 2025, until his death.
28. The issue of the rightful directors or authorised representatives of the plaintiff is yet to be resolved. It would therefore be unsafe to allow the suit to be withdrawn against the 2nd and 5th defendants on the basis of the impugned documents.
29. I am also persuaded that the issues raised in the application dated 22nd June, 2025 are not merely technical. They go to the root of the authority to act for the plaintiff, the validity of the resolution, and the propriety of compromising the suit. Those are central issues in a dispute concerning the management and control of the plaintiff company.
30. The Court must also guard against a situation where one faction within a disputed company uses an interlocutory application to terminate or compromise litigation before the question of lawful control is determined. The justice of this matter requires that the substantive issues proceed to full hearing, unless a valid and properly authorised settlement is placed before the Court.
31. On capacity of M/s Nyamurongi & Co. Advocates to act for the plaintiff it is clear that the said firm acted acted for both the plaintiff and defendant, as per the resolution dated 8.1. 2025. This creates a conflict of interest , as it is trite law that an advocate cannot represent both parties in the same matter.
32. I find that M/s Nyamurongi & Co. Advocates is not properly on record and is conflicted, thus barred from acting for any party in this case. Consequently, the consent dated 9.1. 2025, is null and void and cannot be adopted.
33. In the foregoing circumstances, the application dated 7.3.25 is struck out as the firm of Nyamurongi has no capacity to file it and the alleged consent and the resolution are disputed . I find merit in the application dated 22.6.25 and I allow it as prayed.
The fate of the 1st and 4th defendants
34. On the fate of the 1st and 4th defendants , even without looking at the application dated 7.3.25 , it is not disputed that the 1st defendant passed on over one year ago and the 4th defendant also died on 9.9.25 . It is clear that the suit against the 1st defendant has abated by operation of law under Order 24 Rule (4) Sub rule (3) of the Civil procedure rules . As regards the 4th defendant ,the suit is yet to abate , his counsel to take the necessary steps to have him either substituted or the suit be withdrawn against him within 60 days from today to enable the case move forward .
Mediation agreement
35. Regarding the mediation agreement dated June 19, 2025, filed in Court on the same day, it was allegedly signed by Zablon Ombongi and Wilson Ogucha Nyamwenge for the plaintiff, and by William Ombongo Mayaka, William Ombogo Matundura, and Donald Borongo Mochama for the defendant.
However, upon perusing the plaint, I note that the plaintiff alleges the board of directors at the material time included John Kenyaga Mochama, Kevah Nyakundi, Zablon Ombongi, John Arumba, Rhoda Ondieki, Mary Ratemo, Truphena Moraa, Ogata Siriako, and Nelson Moruri. The verifying affidavit was signed by John Kenyaga Mochama, but no authority from the alleged co -directors was filed to confirm their concurrence as required by Rule 18 (2) of Court Annexed Mediation Rules. The purported mediation agreement is thus null and void .
36. The issue of who the lawful directors thus remains unresolved and can only be determined through a full hearing as I have already found (Supra).
Joinder application
37. Regarding the application for joinder dated 18.3.25 , the intended interested parties claim to be the current officials and seek to be enjoined to assist the Court in determining the issues, as they are the proposed incoming directors of the company.)
38. The 2nd, 3rd, and 4th Defendants oppose the application dated 18 March 2025 on the following key grounds:
a. The suit was validly filed by duly authorized directors acting under the mandate of the Plaintiff’s members.
b. The Applicants have not demonstrated any legal or proprietary interest in the subject matter to justify their joinder.
c. The Applicants have not shown any loss, damage, or prejudice they would suffer if not joined in the proceedings.
d. The intended joinder will not aid the just, expeditious, or proportionate resolution of the dispute, particularly since the matter is already set down for defence hearing.
e. The application is frivolous, misconceived, incompetent, and an abuse of the court process.
39. The dispute herein relates to the directorship and control of Ibacho Trading Company Limited (Company Number CSI 6895). It arose from the company’s 2018 director elections, leading to conflicting management claims.
40. Order 1 Rule 10 of the Civil Procedure Rules allows for the substitution and addition of parties to ensure the determination of the real matters in dispute.
41. In Trusted Society of Human Rights Alliance v. Mumo Matemu [2015] eKLR, the Court defined an interested party as one who has a stake in the proceedings and will be affected by the Court’s decision.
42.In Communications Commission of Kenya v. Royal Media Services [2014] eKLR, the Supreme Court stressed that joinder serves the complete and effectual determination of all issues before the Court.
43.In CIVICON LIMITED V. KIVUWATT LIMITED & 2 OTHERS [2015] EDKLR, it was held that the power given under the Rules is discretionary and must be exercised judiciously to include all parties to the dispute to avoid multiplicity of proceedings.
44. A party seeking joinder must establish a right or interest in the subject matter; otherwise, it cannot be enjoined. The Court in Meme vs Republic (2004) KLR 637 noted that joinder will be permissible where:
• The presence of the party will allow for a complete settlement of all questions involved in the proceedings.
• The joinder will protect the rights of a party who may be adversely affected.
• The joinder will prevent proliferating litigation.
45. Some of the individuals listed as interested parties, such as Wilson Ogucha Nyamwange and Abel Mogaka Motende, are already actively involved in this case. No list of members of the company or register was provided to show that the members participated in the alleged annual general meeting on August 2, 2023 . The authenticity of the minutes dated 2.8.23 is therefore in doubt .
46. I find that the intended interested parties will not assist the Court in determining the issues, as their applications have been opposed and their alleged election is challenged. Their joinder would further complicate matter herein which is currently at the defence stage. The application dated 18.3.25 is devoid of merit .
47. In the upshot , make the following orders ;
i. The application dated 18.3. 2023 seeking joinder is dismissed .
ii. Application dated 22.6.25 is allowed
iii. M/s Nyamurongi and Co. Advocates is barred from acting for any party herein as it is conflicted herein .
iv. I decline to adopt the consent dated 9.1.25
v. I decline to adopt the mediation agreement dated 19.6.25 as it was obtained by unathourised persons and in non- compliance with Rule 18 (2) of Court Annexed mediation Rules 2022 .
vi. Counsel for defendants to take the necessary steps to have the 4th defendant either substituted or the suit be withdrawn against him within 60 days from today to enable the case move forward .
vii. I direct that the defence hearing proceed for the full determination of the dispute.
viii. No party should file any further application without the Court’s leave.
ix. I make no orders as to costs
x. Mention on 30.7.26 before Hon Justice Professor Sifuna for directions on defence hearing .
xi. The orders herein apply to Miscellaneous civil application no. 24 of 2024, which is related to this matter.
T.A ODERA
JUDGE
4.5.26
DELIVERED VIRTUALLY VIA TEAMA PLATFORM IN HE PRESENCE OF MISS KEBUNGO HOLDING BREIF FOR MR NYAMURONGI FOR PLAINITFF. MR NYAGAKA & MR NYARIKI FOR DEFENDANTS . COURT ASSISTANT MR KIPCHIRCHIR
2. On 29.7. 2025, this Court ordered that the parties file submissions regarding the CR12 filed on the same date by the 5th defendant . I take the liberty to determine all the applications herein to expedite the matter.
3. A CR12 dated on 27.7.25 was filed by the 5th defendant and lists 13 directors/shareholders, each holding 1 ordinary share, as follows:
o John Kenyaga Mochama
o Wilson Ogucha Nyamwange
o Dorcas Moraa Onchwati
o Zablon O. Ombongi
o William Onsongo Mayaka
o Hezekiah Amoro Nyatangi
o Samwel Monda Nyongoki Ondora
o Kevah Nyakundi Gadinari
o Aondo Onchiri
o Donald Borongo Mochama
o William Ombogo Matundura
o Mary Nyaboke Ratemo
o Richard Momanyi Nyamari
4. A previous CR12 dated April 25, 2018, indicated the following directors at that time:
o Dorcas Moraa Onchwati
o Kevah Nyakundi Gadinar
o Aondo Onchiri
o Zablon O Ombongi
o Samuel Monda Nyongoki Ondora
o William Ombogo Matundura
o William Onsongo Mayaka
o Wilson Ogucha Nyamwange
o Mary Nyaboke Ratemo
o John Kenyaga Mochama
o Donald Borongo Mochama
o Hezekiah Amoro Nyatangi
5. Additionally a CR12 dated October 13, 2023, was declared fraudulent by this Court in its ruling dated 22.10.24.
6. The 5th defendant filed a new CR12 dated July 29, 2025 which includes two new names:
o Richard Momanyi Nyamari (Director/Shareholder)
o Joseph Mboya Awino (Company Secretary)
7. The 2nd & 3rd defendants submissions indicate that the CR12 dated 29.7. 2025, is accurate except for the inclusion of the two new names i.e
Richard Momanyi Nyamari (Director/Shareholder )and Joseph Mboya Awino (Company Secretary).
8. The 2nd 3rd defendants requested the court to remove these names to accurately reflect the true directors of the company.
9. It is thus clear that there is still a dispute as to who the directors of the company are and this is a matter for trial .
Applications dated 7.3.25 and 22.6.25
10. I now turn to the two related applications. The first is the plaintiff’s Notice of Motion dated 7th March, 2025. The second is the application dated 22nd June, 2025, which was filed by 2nd, 3rd and 4th defendants in opposition to the plaintiff’s application dated 7.3.25.
11. The plaintiff’s application dated 7th March, 2025 seeks, in substance, orders that the suit against the 1st defendant be marked as having abated; that the plaintiff be granted leave to withdraw the suit against the 2nd and 5th defendants; and that the costs of the application be in the cause.
12. The application is supported by the affidavit of Wilson Ogucha Nyamwange, who describes himself as a director of the plaintiff company. He deposes that the directors of the plaintiff met, resolved their differences and passed a resolution to terminate the present suit. He further states that a consent was entered into and filed in court. The plaintiff’s position is that the 1st defendant passed away over one year ago, that the suit against him has abated, and that the plaintiff no longer has a maintainable claim against the 2nd and 5th defendants.
13. The plaintiff relies on a resolution dated 8th January, 2025, said to have been signed by Wilson Ogucha Nyamwange, Mary Nyaboke Ratemo, Richard Momanyi Nyamari, William Ombogo Matundura and Donald Barongo Mochama. The resolution purports to appoint M/s Nyamurongi & Company Advocates to take over the conduct of the suit and to authorise the withdrawal of Kisii HCCC No. 13 of 2018.
14. The plaintiff also relies on the draft consent order dated 9th January, 2025, by which certain orders relating to the operation of a bank account were to be vacated, new signatories appointed, and the suit marked as settled as between the plaintiff and the 3rd and 4th defendants.
15. The said application dated 22nd June, 2025 supported by the further affidavit of William Ombogo Matundura challenges the plaintiff’s application. The response raises questions regarding the capacity of M/s Nyamurongi & Company Advocates to act for the plaintiff, the validity of the alleged company resolution, and the propriety of allowing the suit to be withdrawn or compromised in circumstances where the directorship and control of the plaintiff company remain disputed.
16. In the affidavit in reply sworn by Wilson Ogucha Nyamwange on 16th September, 2025, he maintains that the 3rd and 4th defendants, being defendants in this matter, cannot purport to choose advocates for the plaintiff or speak for the plaintiff company in this suit. He further deposes that the 4th defendant is now deceased, having passed away on 9th September, 2025. He also refers to the affidavit of Penuel Nyagaka Barongo, son of the late Donald Barongo Mochama, who challenges the authenticity of a further affidavit allegedly sworn by the late Donald Barongo Mochama on 22nd July, 2025.
17. Penuel Nyagaka Barongo deposes that his late father was admitted at Nyanchwa Adventist Mission Hospital on 18th July, 2025, discharged on 3rd August, 2025, and later passed away on 9th September, 2025. He further states that the signature appearing on the further affidavit allegedly sworn by his late father on 22nd July, 2025 was not his father’s signature.
18. From the material placed before the Court, the issues that arise for determination are: first, whether the suit against the 1st defendant has abated; second, whether leave should be granted to withdraw the suit against the 2nd and 5th defendants; third, whether the alleged resolution and consent can be relied upon at this stage; and fourth, what orders should issue on the application dated 22nd June, 2025.
19. On the first issue, the plaintiff’s position is that the 1st defendant passed away over one year ago and that no substitution was made within the time prescribed by law. Under Order 24 of the Civil Procedure Rules, where a suit survives against a deceased defendant but no application for substitution is made within one year, the suit abates as against the deceased defendant. I will deal with the issue later in this ruling .
20. The second issue concerns the plaintiff’s prayer for leave to withdraw the suit against the 2nd and 5th defendants. The plaintiff’s view is that since matter has been pending since 2018 and appears not to have been set down for hearing, the plaintiff seeks leave of the Court under Order 25 rule 2 of the Civil Procedure Rules. The grant of such leave is discretionary.
21. In ordinary circumstances, a plaintiff is entitled to discontinue or withdraw a claim. However, where the withdrawal is opposed and where the authority of the persons purporting to act for a corporate plaintiff is seriously contested, the Court must be slow to permit a withdrawal that may have the effect of determining substantive rights before the main dispute is heard.
22. This suit concerns, among other things, the control, management and directorship of Ibacho Trading Company Limited. The persons said to have allegedly authorised the withdrawal include persons who are themselves parties to the dispute or whose authority is being questioned. The Court cannot ignore the fact that the alleged resolution and consent have been challenged.
23. A company acts through its lawful organs. Where there is a dispute as to who the lawful directors or authorised representatives of the company are, the Court must be satisfied that any act purporting to withdraw, compromise or settle litigation on behalf of the company has been properly authorised.
24. The resolution dated 8th January, 2025 and the consent dated 9th January, 2025 raise serious questions. The consent purports to settle the suit as between the plaintiff and the 3rd and 4th defendants and to appoint signatories to the of a company’s Equity bank account. The Court has also been presented with allegations touching on the authenticity of signatures and the capacity of one of the signatories, now deceased.
25. The law on consent orders is settled. A consent order has the effect of a contract between the parties and may only be interfered with on grounds that would justify the setting aside of a contract, including fraud, mistake, misrepresentation, collusion, lack of authority or any other sufficient cause. Where authority to enter into the consent is disputed, the Court must first be satisfied that the consent was validly entered into before adopting the same .
26. In the present matter, the authority of those who allegedly instructed counsel and executed the resolution and consent is contested. William Ombongo Matundura, who allegedly signed it has denied doing so in his affidavit dated 14.3.25.
27. Donald Borongo Mochama, who allegedly signed the resolution dated January 8, 2025, and the consent, passed away on 9.9. 2025, as per the affidavit of his son, Penuel Nyagaka Barongo, dated 16.9. 2025. This affidavit states that his father did not sign the further affidavit dated 22.7.2025, as he was hospitalised from 18.7. 2025, until his death.
28. The issue of the rightful directors or authorised representatives of the plaintiff is yet to be resolved. It would therefore be unsafe to allow the suit to be withdrawn against the 2nd and 5th defendants on the basis of the impugned documents.
29. I am also persuaded that the issues raised in the application dated 22nd June, 2025 are not merely technical. They go to the root of the authority to act for the plaintiff, the validity of the resolution, and the propriety of compromising the suit. Those are central issues in a dispute concerning the management and control of the plaintiff company.
30. The Court must also guard against a situation where one faction within a disputed company uses an interlocutory application to terminate or compromise litigation before the question of lawful control is determined. The justice of this matter requires that the substantive issues proceed to full hearing, unless a valid and properly authorised settlement is placed before the Court.
31. On capacity of M/s Nyamurongi & Co. Advocates to act for the plaintiff it is clear that the said firm acted acted for both the plaintiff and defendant, as per the resolution dated 8.1. 2025. This creates a conflict of interest , as it is trite law that an advocate cannot represent both parties in the same matter.
32. I find that M/s Nyamurongi & Co. Advocates is not properly on record and is conflicted, thus barred from acting for any party in this case. Consequently, the consent dated 9.1. 2025, is null and void and cannot be adopted.
33. In the foregoing circumstances, the application dated 7.3.25 is struck out as the firm of Nyamurongi has no capacity to file it and the alleged consent and the resolution are disputed . I find merit in the application dated 22.6.25 and I allow it as prayed.
The fate of the 1st and 4th defendants
34. On the fate of the 1st and 4th defendants , even without looking at the application dated 7.3.25 , it is not disputed that the 1st defendant passed on over one year ago and the 4th defendant also died on 9.9.25 . It is clear that the suit against the 1st defendant has abated by operation of law under Order 24 Rule (4) Sub rule (3) of the Civil procedure rules . As regards the 4th defendant ,the suit is yet to abate , his counsel to take the necessary steps to have him either substituted or the suit be withdrawn against him within 60 days from today to enable the case move forward .
Mediation agreement
35. Regarding the mediation agreement dated June 19, 2025, filed in Court on the same day, it was allegedly signed by Zablon Ombongi and Wilson Ogucha Nyamwenge for the plaintiff, and by William Ombongo Mayaka, William Ombogo Matundura, and Donald Borongo Mochama for the defendant.
However, upon perusing the plaint, I note that the plaintiff alleges the board of directors at the material time included John Kenyaga Mochama, Kevah Nyakundi, Zablon Ombongi, John Arumba, Rhoda Ondieki, Mary Ratemo, Truphena Moraa, Ogata Siriako, and Nelson Moruri. The verifying affidavit was signed by John Kenyaga Mochama, but no authority from the alleged co -directors was filed to confirm their concurrence as required by Rule 18 (2) of Court Annexed Mediation Rules. The purported mediation agreement is thus null and void .
36. The issue of who the lawful directors thus remains unresolved and can only be determined through a full hearing as I have already found (Supra).
Joinder application
37. Regarding the application for joinder dated 18.3.25 , the intended interested parties claim to be the current officials and seek to be enjoined to assist the Court in determining the issues, as they are the proposed incoming directors of the company.)
38. The 2nd, 3rd, and 4th Defendants oppose the application dated 18 March 2025 on the following key grounds:
a. The suit was validly filed by duly authorized directors acting under the mandate of the Plaintiff’s members.
b. The Applicants have not demonstrated any legal or proprietary interest in the subject matter to justify their joinder.
c. The Applicants have not shown any loss, damage, or prejudice they would suffer if not joined in the proceedings.
d. The intended joinder will not aid the just, expeditious, or proportionate resolution of the dispute, particularly since the matter is already set down for defence hearing.
e. The application is frivolous, misconceived, incompetent, and an abuse of the court process.
39. The dispute herein relates to the directorship and control of Ibacho Trading Company Limited (Company Number CSI 6895). It arose from the company’s 2018 director elections, leading to conflicting management claims.
40. Order 1 Rule 10 of the Civil Procedure Rules allows for the substitution and addition of parties to ensure the determination of the real matters in dispute.
41. In Trusted Society of Human Rights Alliance v. Mumo Matemu [2015] eKLR, the Court defined an interested party as one who has a stake in the proceedings and will be affected by the Court’s decision.
42.In Communications Commission of Kenya v. Royal Media Services [2014] eKLR, the Supreme Court stressed that joinder serves the complete and effectual determination of all issues before the Court.
43.In CIVICON LIMITED V. KIVUWATT LIMITED & 2 OTHERS [2015] EDKLR, it was held that the power given under the Rules is discretionary and must be exercised judiciously to include all parties to the dispute to avoid multiplicity of proceedings.
44. A party seeking joinder must establish a right or interest in the subject matter; otherwise, it cannot be enjoined. The Court in Meme vs Republic (2004) KLR 637 noted that joinder will be permissible where:
• The presence of the party will allow for a complete settlement of all questions involved in the proceedings.
• The joinder will protect the rights of a party who may be adversely affected.
• The joinder will prevent proliferating litigation.
45. Some of the individuals listed as interested parties, such as Wilson Ogucha Nyamwange and Abel Mogaka Motende, are already actively involved in this case. No list of members of the company or register was provided to show that the members participated in the alleged annual general meeting on August 2, 2023 . The authenticity of the minutes dated 2.8.23 is therefore in doubt .
46. I find that the intended interested parties will not assist the Court in determining the issues, as their applications have been opposed and their alleged election is challenged. Their joinder would further complicate matter herein which is currently at the defence stage. The application dated 18.3.25 is devoid of merit .
47. In the upshot , make the following orders ;
i. The application dated 18.3. 2023 seeking joinder is dismissed .
ii. Application dated 22.6.25 is allowed
iii. M/s Nyamurongi and Co. Advocates is barred from acting for any party herein as it is conflicted herein .
iv. I decline to adopt the consent dated 9.1.25
v. I decline to adopt the mediation agreement dated 19.6.25 as it was obtained by unathourised persons and in non- compliance with Rule 18 (2) of Court Annexed mediation Rules 2022 .
vi. Counsel for defendants to take the necessary steps to have the 4th defendant either substituted or the suit be withdrawn against him within 60 days from today to enable the case move forward .
vii. I direct that the defence hearing proceed for the full determination of the dispute.
viii. No party should file any further application without the Court’s leave.
ix. I make no orders as to costs
x. Mention on 30.7.26 before Hon Justice Professor Sifuna for directions on defence hearing .
xi. The orders herein apply to Miscellaneous civil application no. 24 of 2024, which is related to this matter.
T.A ODERA
JUDGE
4.5.26
DELIVERED VIRTUALLY VIA TEAMA PLATFORM IN HE PRESENCE OF MISS KEBUNGO HOLDING BREIF FOR MR NYAMURONGI FOR PLAINITFF. MR NYAGAKA & MR NYARIKI FOR DEFENDANTS . COURT ASSISTANT MR KIPCHIRCHIR