Background
1. The application dated 22nd March 2024 seeks two substantive prayers. The first is an injunction against the 2nd to 4th defendants and SIMON NAMADA from holding any illegal Board meeting and from convening any meeting of the shareholders of the 1st defendant pending the hearing and determination of this application.
2. The applicant prays that if any such meeting has been held, to have the same declared null and void. The application further seeks an order that the applicant be made a compulsory signatory to the account of the 1st defendant and also be made a part of the 1st defendant’s Board of Management.
3. According to the applicant, the decision by G. Nzioka, J of 21st September 2018 found that the defendants owe the plaintiffs Kshs. 2,000,000/= which remains unpaid to date. The applicant further avers that the orders of the Court that the property in dispute be valued is also yet to be complied with, and he blames the defendants for obstructing the valuation process.
4. It is the applicant’s case that the plaintiffs stand to lose the amount of money owed by the defendants due to the actions of the defendants who, in 2013, interfered with the business of the plaintiffs on the disputed area and the business came to a halt to date.
5. The applicant’s apprehension is further as a result of the way that the defendants have managed the 1st defendant. The applicant accuses them of appointing the 2nd defendant as company secretary without the consent of the applicant. The applicant accuses the 3rd and 4th defendants and SIMON NAMADA of having appointed themselves directors of the 1st defendant.
6. It is for these reasons that the applicant feels that the application ought to be allowed so as to safeguard the plaintiffs’ monetary interests and other rights that are being interfered with by the 2nd, 3rd and 4th defendants and SIMON NAMADA.
7. The application is opposed by way of Grounds of Opposition dated 19th May 2023. The substance of the opposition is that the subject case is a tenancy dispute completely outside the ambit of the management and directorship of the 1st defendant Company which dispute if any would be a separate and distinct cause.
8. The defendants further argue that NAMADA SIMONI Advocate is not party to this case but an Advocate representing the defendants.
Analysis and determination
9. I have carefully considered the pleadings, submissions and the evidence tendered by the parties. The main issue that arises for determination is whether the applicant is deserving of the orders sought. In order to answer this question, I have carefully studied the ruling by Nzioka, J issued on 21st September 2018 (the Ruling) that both parties have referred to. The Learned Judge already pronounced herself on the fact that:
“The issues that were pending were: rent payable for the entire restaurant area created upon the back filling of a swimming pool and all the adjoining kitchen space (to be known as the rental space), and the issue of service charge. There is no reference to rent and/or any figure payable for parking space…It is clear from the two (2) valuations provided that both of them indicate that the service charge is not payable. That leaves only one issue, the issue of payment in relation to the rental space. It is also clear that this issue can only be reconciled by a valuation report prepared by an independent valuer of the two parties herein.”
10. The Learned Judge by her decision confirms that the only issue for determination in this matter is the amount due as rent. I note the complaint by the applicant blaming the respondents for the fact that the orders of the Court for valuation to be done have not been complied with.
11. I have looked through the evidence submitted by the applicant and it is clear from the evidence that the ISK did appoint a valuer as directed by this Court. This is confirmed by a letter dated 15th February 2022 to the parties, communicating the appointment of GLORIA SARAH AWINJA.
12. It is not clear what transpired in between this period, up to 12th July 2022, roughly 4 months thereafter, when the valuer wrote to the parties seeking confirmation on whether the matter had been settled. What can be discerned from the correspondence between the appointed valuer and the Advocate is that the two were on several occasions unable to find an opportune time to visit the premises for purposes of valuation.
13. It is now 2024, over 2 years since the appointment of the valuer. The correspondence on record alone does not confirm to me that the failure to have the valuation carried out was deliberate on the side of the Advocate or the valuer. What I however fault the parties for is the undue delay in reconciling their schedule and complying with the directions of this Court. While the applicant is fast to blame the respondents, no evidence has been supplied to this Court to confirm that the applicant followed up on the delay.
14. I further note that the directions issued by Nzioka J was for parties to agree on a date when the valuation report would be availed for further orders by the Court.
15. That said, Court Orders are not issued in vain and must be complied with. The parties must work with the Court to realize the overriding objectives of civil litigation as set out in sections 1A and 1B of the Civil Procedure Act. These, it must be recalled, are anchored on Article 159 of the Constitution. While I cannot fault the respondents alone for the delay, it is imperative for the closure of this matter that the Orders issued by this Court be complied with without further delay.
16. Not to be forgotten is that the applicant also seeks injunctive prayers against the respondents from holding any Board meeting or meeting of the shareholders of the 2nd plaintiff and to be included as a compulsory signatory to the accounts. This Court has already pronounced itself through the subject ruling that there was only 1 issue pending for determination arising from the consents entered into between the parties. There is no place for me to contradict a finding of a Court of concurrent jurisdiction.
17. Additionally, I am inclined to agree with the respondents that the subject matter of these injunctive prayers creates another distinct dispute. This is also evident from the prayers and averments contained in the plaint dated 20th February 2022. For this reason, I shall only deal with the outstanding issue of the valuation for purposes of determining the rent payable, noting that this Court already found that no service charge is payable for the property.
Disposition
18. Having said so, the order that commends itself to me and which I hereby direct is as follows:
i. That parties shall cooperate with the appointed independent valuer and ensure that the intended valuation as ordered by this Court is carried out within 45 days of this ruling.
ii. In default of this, the valuation of the monthly rent for the rentable area shall be assumed to be Kshs. 51,852.70, per month, being the average of the figures provided by the two valuers, which amount shall be offset against the Kshs. 2,000,000/= due to the plaintiff from the defendants in adherence with paragraph 5 of the consent dated 31st January 2014 and filed in Court on 31st January 2014.
iii. Each party shall bear their own costs of this application.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 5TH DAY OF JULY 2024.
F. MUGAMBI
JUDGE