JACKSON NYANGEMI MAENGWE AND STEPHEN NYACHIEO BOGONKO AND 5 Others VS KENYA TEA DEVELOPMENT AGENCY AND THE CHAIRMAN,TOMBE TEA FACTORY AND 1 Others

1. The Petitioners herein filed the petition dated 9^th July 2024 seeking the following orders: -
2. An order that the smallholder tea factories’ directors’ elections for directors of NYANSIONGO TEA FACTORY COMPANY LIMITED, GIANCHORE COMPANY LIMITED, NYANKOBA TEA FACTORY COMPANY LIMITED, KEBIRIGO TEA FACTORY COMPANY LIMITED, TOMBE TEA FACTORY COMPANY LIMITED and SANGANYI TEA FACTORY COMPANY LIMITED is null and void.
3. A declaration that the election of Directors of NYANSIONGO TEA FACTORY COMPANY LIMITED, GIANCHORE COMPANY LIMITED, NYANKOBA TEA FACTORY COMPANY LIMITED, KEBIRIGO TEA FACTORY COMPANY LIMITED, TOMBE TEA FACTORY COMPANY LIMITED and SANGANYI TEA FACTORY COMPANY LIMITED be conducted afresh.
4. Concurrently with the petition, the Petitioners filed an application dated 9^th July 2024 under certificate of urgency, seeking orders as follows: -
5. Spent
6. THAT pending the hearing and determination of this application, the honourable court be pleased to issue an interim order injunction restraining the 1^st and 2^nd respondents, their agents, assigns and/or representatives from swearing and/or confirming the nominee directors of GIANCHORE TEA FCTORY, NYANKOBA TEA FACTORY, KEBIRIGO TEA FACTORY, NYANSIONGO TEA FACTORY, TOMBE TEA FACTORY and SANGANYI TEA FACTORY whatsoever.
7. THAT upon prayer (2) hereinabove being granted, the honourable court be pleased to issue a temporary order of injunction restraining the 1^st and 2^nd respondents, their agents, assigns and/or representatives from swearing and/or confirming the nominee directors of GIANCHORE TEA FCTORY, NYANKOBA TEA FACTORY, KEBIRIGO TEA FACTORY, NYANSIONGO TEA FACTORY, TOMBE TEA FACTORY and SANGANYI TEA FACTORY pending the hearing and determination of this petition.
8. Costs of this application be provided for.
9. The application is supported by the 1^st Petitioner’s Affidavit and is premised on the following grounds: -
10. THAT the 1^st and 2^nd respondents rescheduled elections from 28^th June, 2024 in terms of the timetable for smallholders tea factories election for directors to 29^th June, 2024 which was on a Saturday thus locking out over 50% of the voters and candidates from participating in the exercise considering that this is the area for the seventh day Adventist faithfuls.
11. THAT even if any notices were issued, the same must have been done on 28^th June, 2024 when the voters must have been so tiered and left to their respective homes without that information.
12. THAT the notices issued were by way of test messages to the candidates who received them after the voters had left due to tiredness and who dint have be mandate to go and announce to the voters across the electoral areas hence making it literally difficult for the voters to have known about the abrupt change of the election date.
13. THAT the 1^st, 2^nd and 3^rd respondents didn’t even deem it necessary to make the announcement of the change of the election date through the National Radio and Television stations and local radio stations across the electoral areas.
14. THAT the 1^st, 2^nd and 3^rd respondents needed to have put announcements on conspicuous places across the tea buying centers for the voters to be able to have the information which they also failed to do.
15. THAT failure to convey information to the voters as required even by use of announcing using mobile vehicles across electoral areas amounted to an act of rigging the elections.
16. THAT failure to do the needful in terms of announcements of the change of the date across the electoral areas was unfortunate and prejudicial to the candidates and the voters.
17. THAT the petitioners are apprehensive that nominee directors in all the electoral areas of the aforesaid factories will be sworn and confirmed before this matter is heard and determined.
18. THAT unless the 1^st and 2^nd respondents are restrained from swearing in the nominee directors pending the hearing and determination of this matters, the petitioners and the interested party herein will suffer substantial loss and damage.
19. THAT it is therefore important and on the wider interests of justice that there be an order for temporary injunction restraining the 1^st and 2^nd respondents from swearing in the nominee directors pending the hearing and determination of this matter.
20. THAT there appears special, peculiar, unique and plausible circumstances to warrant the application herein being allowed Ex-Debito Justititae.
21. When the matter first came up under certificate of urgency, on 11^th July 2024, this court granted orders of interim injunction to restrain the 1^st & 2^nd Respondents from swearing in or confirming the nominee directors of the various tea factories pending the hearing and determination of the application inter partes.  The court then directed the Petitioners to serve the pleadings on the Respondents.
22. When the matter came up for mention on 16^th July 2024, Counsel for the Respondents informed the court that the Respondents had filed an application dated 13^th July 2024 seeking, inter alia, orders to set aside/lift the ex-parte orders of 11^th July 2024.
23. The court then directed the parties to exchange pleadings and submissions in respect to the two pending applications.  The matter was thereafter listed for further directions on 18^th July 2024. 
24. During mention of 18^th July 2024, Counsel for the Respondents once again urged this court to lift the ex-parte orders of injunction which prayer was vehemently opposed by the Petitioners and Interested Parties.
25. A summary of the Respondents’ submissions were firstly; that there is an urgency in lifting the impugned interim orders as they have the effect of interfering with the elections in the entire tea sector such that the directorship position cannot be left in limbo.  The Respondents faulted the Petitioners for failing to disclose that the timelines for the elections in the tea sector had been set by a 3 Judge Bench in Constitutional Petition Nos. E254/2020 consolidated with E016 of 2021 (hereinafter “the three Judge Bench Case”) following the serious acrimony that had been experienced in the tea sector. 
26. It was submitted that the postponement of the elections did not prejudice any party as the parties agreed to it (since it was occasioned by circumstances that were beyond the control of any of the parties.
27. It was the Respondent’s case that should the Petitioners’ succeed in the main petition, then the outcome of the current elections will be nullified and a fresh election conducted just like in the parliamentary/general elections.  The Respondents emphasized that the lifting of the interim orders will not prejudice the Petitioners in any way while on the flipside, the entire tea sector will remain at a standstill due to the lacuna created in the directorship of the affected tea factories.
28. The 2^nd Respondent joined issue with the rest of the Respondents and submitted that through a consent recorded in the 3 Judge Bench case, parties agreed to conduct the factory elections at the end of June 2024.  The 2^nd Respondent faulted the Petitioners for failing to disclose the timelines set by the 3 Judge Bench for the conducting of the factory elections.
29. It was submitted that the petition was prematurely filed before this court as the Petitioners were required to file their dispute in the first instance, before the Election Dispute Resolution Committee (EDRC) before coming to court in line with paragraph 8 of the Election Manual governing the said elections.
30. Mr. Nyamwange, Advocate for the Petitioners, submitted that proper notice was not sent to the parties when the elections were slated for 28^th June 2024 were postponed to 29^th June 2024 thereby leading to the exclusion of majority of voters from participating in the said elections.
31. The Petitioners also took issue with the holding of the elections on a Saturday as it disenfranchised majority of the voters who belong to the Seventh-Day Adventist Church as Saturday is their day of worship.
32. It was submitted that the Directors of the factories are not employees and that the delay in swearing them in will not affect the operations of the affected factories. 
33. The Petitioners also observed that the Counsel on record for the Respondents were not properly on record as they had not filed their respective authorities to act for the listed companies. 
34. Mr. Otieno, for the Interested Parties supported the Petitioners’ submissions and argued that the Respondents did not demonstrate that the factories will grind to a halt if the interim orders are not lifted.  He added that the short term absence of directors will not affect the said factories. 
35. It was submitted that the alternative dispute resolution mechanism provided in the Election manual could not override the jurisdiction of the constitutional court in handling the dispute over violation of constitutional rights of the voters to participate in the subject elections.
36. It was submitted that the Petitioners were not the contestants in the said elections and are not bound by the provisions of the Elections manual and neither were they parties in the three Judge Bench case.
37. The Interested Parties urged this court to sustain the interim orders pending the hearing and determination of the petition. 
38. I have carefully considered the pleadings filed herein and the parties’ rival submissions.  I find that the main issue for determination is whether nor not the interim orders of injunction issued, ex-parte, on 11^th July 2024 should be lifted.  A determination of this issue will require this court to consider the principles governing the granting of orders of injunction with a view to establishing if, in this case, the Petitioners have made out a case for the granting of orders of injunction.
39. Before I delve into determining the subject of the interim orders, of injunction, I am minded to consider the issue raised by the Petitioners over the failure, by Counsel for the Respondents, to demonstrate that they were duly authorized to act for the Respondents’ companies by resolutions passed by the said companies’ directors.
40. The issue of company resolution to authorize the filing of pleadings or to act for such companies has been the subject of several court decisions.  Courts have taken the position that such resolutions by the Board of Directors of a company may be filed at any time before the suit is fixed for hearing as there is no requirement that the same be filed at the same time as the suit and that the absence of a resolution is not fatal to the suit.  See Republicus Registrar General and 13 other Misc. Application No. 67 of 2005 [2005] eKLR. 
41. Guided by the findings above cited cases, I find that the Respondents’ Counsel’s failure to file resolutions authorizing them to act for the Respondent, was not fatal to their response. 
42. Turning to the lifting of the interim orders, it is to be noted that the impugned orders were issued ex-parte, which means that the Respondents were not given a hearing before the said orders were issued.
43. It is also trite that the granting or setting aside of an order of injunction is at the discretion of the court.  Needless to say, such discretion must be exercised judiciously and not capriciously.  This was the holding in St. Patricks Hill School Ltd v Bank of Africa Kenya Ltd [2018] eKLR where it was held: -

“Similarly, this court has unfettered discretion to discharge or vary or even set aside an injunction order if the ends of justice so demand, or if the injunction does not serve the ends of justice it was intended to serve when it was issued. Questions such as whether it is unjust to maintain the injunction in force or it is otherwise unjust and inequitable to let the order remain will be asked when considering an application to discharge an injunction.”

1. In the present case, as I have already noted, the interim orders were granted ex-parte in the first instance before hearing the arguments by both parties. 
2. After a careful consideration of the respective parties’ depositions and submissions I note that while the Respondents state that the operations of the factories will be left in limbo and the scheduled elections in the entire tea sector put in jeopardy if the interim orders of injunction are not lifted, the Petitioners did not state what injury or loss they stand to suffer if the interim orders are lifted.
3. This court notes that the Petitioners’ main grievance is with the manner in which the elections were conducted.  They contended that elections postponed at the eleventh hour to a date that fell on a Saturday thus locking out a majority of voters who were unable to turn out for the voting due to the fact that the election day fell on their day of worship.
4. My finding is that the Petitioners did not demonstrate that their petition will be rendered nugatory if the interim orders are lifted.  Indeed, as correctly pointed out by the Respondents, in the event that the Petitioners succeed in the petition, this court can still nullify the elections and order that fresh elections be conducted.
5. I am therefore not persuaded that the Petitioners will suffer irreparable prejudice if the interim orders are lifted.
6. For the reasons that I have stated in this ruling, I find that the Respondents have made out a case for the lifting of the ex-parte interim orders and I therefore allow the application dated 13^th July 2024 with orders that the costs of the application shall abide the outcome of the main petition.
7. The orders issued in this matter will apply to the related case being Nyamira HCCC No. E004 of 2024.  Parties are further directed to expedite the hearing of the main petition in the interest of justice in light of the critical importance of stability and smooth running of the tea sector.
8. It is so ordered. 

Ruling dated, signed and delivered at Nyamira virtually via Microsoft Teams this 19^th day of July 2024.

In the Presence of: -

Mr. Nyamwange for the Petitioners

Mr. Mireri & Mukonyi for the Respondents

Odoyo & Kichwen for 2^nd Respondent

O M Otieno & Ms. Opondo for the Interested Party