STEPHEN MUKONZA MBOLONZI AND DANCAN MBITHI MATINGI AND 2 Others VS ONESMUS KYALO NDAMBUKI(sued as the chairman MACHAKOS MATATU OWNERS AND DAVID WAMBUA MAKAU(sued as the secretary MACHAKOS MATATU OWNERS AND 1 Others

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL SUIT NO. E003 OF  2025

DANCUN MBITHI MATINGI ………………………..…1^ST PLAINTIFF/APPLICANT

JACKSON M. BENARD…….…………….………..….2^nd PLAINTIFF/APPLICANT

VERSUS

ONESMUS KYALO NDAMBUKI (Sued as the Chairman of MACHAKOS MATATU OWNERS ASSOCIATION) ……………………..…..1^ST DEFENDANT/RESPONDENT

DAVID WAMBUA MAKAU (Sued as the Secretary of MACHAKOS MATATU OWNERS ASSOCIATION) ……….………………..2^nd DEFENDANT/RESPONDENT

JOSEPH WAMBUA MUSAU (Sued as the Treasurer of MACHAKOS MATATU OWNERS ASSOCIATION) ……….………………..3^rd  DEFENDANT/RESPONDENT

RULING

1. The application
2. The Plaintiffs/Applicants’ Notice of Motion application is dated 13th January 2025 and filed under Certificate of Urgency. It is premised on Articles 50 and 159 of the Constitution of Kenya, Section 1A, 1B, 3A of the Civil Procedure Act, Sections 26, 27 (1) (a), 28(1)(a), 29 (1) (a) (b) of the Societies Act Cap 108 and all other enabling provisions of the law. The application is supported by the affidavit sworn on the even date by TOM M. MUTHAMA, the Applicants’ counsel on record herein.
3. The Applicants seek for the following orders:
4. Spent;

2.    Spent;

1. THAT this Honourable Court be pleased to issue an Order suspending and/or freezing all operations with regards to account No. 01100275429001 held at Co-operative Bank, Machakos Branch pending hearing and determination of the instant application.
2. THAT this Honourable Court be pleased to issue an Order for forensic audit with regards to account No. 01100275429001 held at Co-operative Bank, Machakos Branch pending hearing and determination of the instant application.
3. Spent
4. (A repeat of prayer No. 3)
5. THAT costs of the Application be provided for.

3.  The application is   further premised on the grounds on the face of the application. Among the grounds are that:-

1. the Plaintiffs/ Applicants and the Defendants/ Respondents are all members of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) duly registered under Section 10 of the SOCIETIES ACT CAP 108 on 18^TH August, 2023.
2. via a meeting held and ratified by members of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA) on 14^TH August, 2023, the Defendants/ Respondents were duly elected as the Chairman, Secretary and Treasurer of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA) respectively while the 5^TH Plaintiff/ Applicant (now 2^nd Applicant) was elected the Vice-Chairman thereof.
3. as per the duly registered Constitution of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA) with the Registrar of Societies as per paragraph 3 of the said Constitution, each member of was to make a monthly contribution of Kenya Shillings Fifteen Thousand Only (Kshs.15,000/=) which monies were to be contributed not later than the 15^th of every month which amounts members of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA) have been contributing religiously and on time.
4. as per Paragraph 5(e) of the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA), the Treasurer is responsible to the committee and members of that proper books of accounts of all monies received and paid by the society are written up, preserved and available for inspection which the Treasurer has not done so in contravention of the Constitution.
5. as per Paragraph Il (a) of the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA), an auditor shall be appointed by the ANNUAL GENERAL MEETING (AGM) for the examination of the accounts of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) and preparation of a report of the accounts and statements of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) which the same has not been done.
6. as per Paragraph 4(a) of the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA), all the office bearers of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) shall be elected at the ANNUAL GENERAL MEETING (AGM) to be held each year and as per Paragraph 6(b)(i) of the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA) the said ANNUAL GENERAL MEETING (AGM) to be held not later than 31^st December of each year.
7. the Defendants/ Respondents being the officials of MACHAKOS

MATATU OWNERS ASSOCIATION(MAMOA) have not adhered to the

Constitution of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA) and have violated the same by not calling for ANNUAL GENERAL MEETING (AGM) and elections of the officials of MACHAKOS MATATU OWNERS ASSOCIATION (MAMOA) on or before 31 ^ST December, 2024.

1. the Defendants/ Respondents being the officials of MACHAKOS

MATATU OWNERS ASSOCIATION(MAMOA) have not adhered to the

Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) and have violated the same by not availing the books of account for the said accounts for inspection by members as per Paragraph 16 of the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA).

1. the 2^nd Plaintiff/ Applicant being the duly elected Vice-Chairman of

MACHAKOS MATATU OWNERS MATATU OWNERS ASSOCIATION as per

Paragraph 4(a) of the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) has been sidelined from the running of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) affairs of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) and on questioning the operations of MATATU OWNERS ASSOCIATION(MAMOA) by the Defendants/Respondents was duly dismissed by the Defendants/ Respondents despite the 2^nd Plaintiff/ Applicant being a duly elected official of MATATU OWNERS ASSOCIATION(MAMOA).

1. the Defendants/Respondents being the officials of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) have illegally and unlawfully been withdrawing amounts from account number 01100275429001 held in CO-OPERATIVE BANK, MACHAKOS BRANCH belonging to MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) without any accountability to the members of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA).
2. the Defendants/ Respondents being the officials of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) have illegally and unlawfully called for an Annual General Meeting (AGM) on 16^TH January, 2025 which is in contravention of the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) which states that all Annual General Meeting(AGM) are to be held not later than 31st December of each year and the Defendants/ Respondents have only placed the office of the Vice-Chairman as Vacant instead of declaring all electable seats as provided for by the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA).

1)  the Defendants/Respondents being the officials of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) are solely running the affairs of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) without the inclusion or input of other duly elected officials of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA).

1. the Defendants/Respondents being the officials of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) are no longer acting in the interest of the members MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) and have blatantly disregarded the

Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) and are now acting in their own selfish interests.

1. It is therefore in the interest of justice that the application be allowed as prayed as the Defendants/ Respondents have failed to uphold the Constitution of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA), violated the said Constitution and are likely to further misuse the funds of MACHAKOS MATATU OWNERS ASSOCIATION(MAMOA) unless the above orders sought are granted.
2. The Response
3. The application is opposed by the Replying Affidavit of Joseph Musau Ndambuki sworn on 21^st January 2025. He deponed that the application is frivolous, vexatious, infuriating and an abuse of the court process and a waste of judicial precious time. That the application herein is fatally and irretrievably defective and an objection shall be raised at the opportune time to have the same struck out with costs to the Defendants/Respondents.
4. The Respondents contend that the Applicants’ lack locus standi to bring the said application since the application as it is framed and worded offends the provisions of paragraph 3 of the constitution of MACHAKOS MATATU OWNERS ASSOCIATIONS as regards to the membership which defines a member of the association as (Any registered Sacco or Company in the transport business in Kenya shall be eligible for membership of the society) and in that regards the Applicants herein are not the members of said Association’s membership comprising of registered Saccos or Company and therefore they have no locus capacity to institute this motion hence said application is defective ab initio and ought to be dismissed with costs to the Respondents
5. The Respondents aver that the plaintiffs/applicant's application herein is tainted with falsehood and misrepresentation of facts tabled before this court and therefore and in particular in response to paragraph c of the grounds in the motion herein they wish to state that in deed the members of the association were to make monthly contribution of Kenya shillings fifteen thousand (Kshs.15,000/=) however it is misleading for the Plaintiffs/Applicants to state that they have been contributing to the said amount to the association without substantiating the said allegation and yet they are not members of the association within the definition of the membership under the provisions of paragraph 3 of the registered constitution of the society hence it's evident that the Applicants are approaching this honorable court with unclean hands to frustrate the wheels of justice.
6. The Respondents averred that the MACHAKOS MATATUS OWNERS ASSOCIATIONS’s Constitution at paragraph 16 stipulates the manner in which the book of the accounts are to be inspected and states that:-

“the books of accounts and all documents relating thereto and list of members of the society shall be availed for inspections at the registered office of the society by any officer or member of the society on giving not less than seven days' notice in writing to the society”

1. Therefore, the allegations that the treasurer has not availed the books for inspection is farfetched since no notice has been furnished before this court having been served upon the treasurer and the same was ignored as purported by the Plaintiffs/Applicants.
2. The Respondents state that the averment made at paragraph (e) of the grounds of the motion herein the Applicants are not truthful since they are all representatives and Chairman of their respective Sacco members of the MACHAKOS MATATUS OWNERS ASSOCIATIONS who normally hold regular meetings with the Defendants/Respondents in their capacities as the officials of the respective Sacco members and that on 13/11/2024 they attended a meeting whereby it was unanimously agreed that due to logistical issues whereby inaugural AGM of the association held in 18/08/2024 failed to appoint an auditor the books of accounts could not be audited and the team agreed to have the AGM held in January since there was no sufficient time left to meet the Associations constitutional requirement to hold elections before 31^st December 2024.
3. The Respondents aver that they are ready and willing to have the elections carried as provided for by the Constitution of the Association and to that effect the 2^nd Respondent herein had issued a notice for annual general meeting to be held on 16/1/2025 and which meeting was suspended by this court’s order  and in that regard the Respondents seek directions from this court on a date for the Association to proceed and hold AGM in accordance with the provisions of its Constitution and also conduct elections for all the officials.
4. The Respondent stated that they have fully adhered with the Constitution of the Association  >><> >><>>> >< >><>><> > ></><>>>><>><>><>>> ><><>></><>>> ><>>> >></><>  href="http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=CAP. 15" target="_blank">Oaths and Statutory Declarations Act thus rendering the application unopposed.
5. Section 4 and 5 of the Oaths and Statutory Declarations Act  states: -

“Section (4)(1)A commissioner for oaths may, by virtue of his commission, in any part of Kenya, administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters ecclesiastical and matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any subordinate court:

Section 5 provides Particulars to be stated in jurat or attestation clause “Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.”

1. I have perused the Replying Affidavit sworn on 21/1/2025 by Joseph Musau Ndambuki and I agree with the Applicants that in deed the same was sworn at Machakos but bears the stamp of a commissioner whose postal address shows Nairobi. My position on this argument is that, it is common practice that Advocates in Kenya are allowed to practice in any court and any part within the Republic and most of the time, Advocates commissioners carry along with them their portable commissioning stamps and may be called upon at any place and at any time to commission a document. I believe so long as such a commissioner is duly admitted on the Roll of Commissioners and his/her practicing status is active then, I see no bar for them to commission documents from wherever part of the Republic of Kenya and therefore the stamp in the Replying Affidavit does not make it defective in form as it clearly shows that it was commissioned by KAROLINA KIBIWOTT who is an advocate and commissioner of oaths. Unless the said commissioner can be shown not to be a licenced advocate and commissioner at the time of commissioning, I will deem the Replying Affidavit to be competent and  this court does admit it under Order 19 Rule 7 of the civil procedure rules. The Applicants’ argument is therefore overruled.
2. I will now turn to determine the issue as regards whether the Applicants had the locus standi to institute the proceedings herein. Locus-standi signifies a right to be heard. A person must have a sufficiency of interest to sustain his standing to sue in a Court of law. That was the holding in BV Narayana Reddy –vs- State of Kamataka Air (1985) Kan 99, 106 (The Constitution of India, ARD 226). I adopt the same as a correct proposition of the law and I so hold.
3. The Black's Law Dictionary, 9^th Edition (page 1026) as defines Locus Standi as “the right to bring an action or to be heard in a given forum”.
4. Initially these proceedings were initiated or rather filed by five (5) Applicants but along the way three (3) of them sought leave of the court to withdraw as parties to the proceedings. These were Stephen Mbolozi Mukonza, George Kamweli Kiumi and Charles Kyalo Kyule the 2^nd, 3^rd and 4^th Applicants respectively. The remaining Applicants are Dancun Mbithi Matingi and Jackson M. Benard.
5. I have had the chance to read through the Constitution of the Association herein. Paragraph 3 of the Constitution of MACHAKOS MATATUS OWNERS ASSOCIATIONS as regards the membership, defines a member of the Association as (Any registered Sacco or Company in the transport business in Kenya as an eligible member of the society).
6. In the Further Affidavit sworn on 7^th February 2025 by the 2^nd Applicant, Jackon M. Benard, admits that he is Vice Chairman of the Association herein and that he is a member by virtue of his position as the duly elected Vice Chairman. I can confidently hold that the membership of the Association as provided for under paragraph 3 of the Constitution does not include officials of the Association as claimed by the Applicants. The Officials are instead elected by the members of the various Saccos or Companies who are members of the Association. It is my view that the Applicants can only be members of the Sacco or Transport Company which are in turn members of the Association.
7. On the other hand, the 1^st Applicant Dancan Mbithi Maitingi has not attempted to state his nexus or relationship with the Association or in what capacity he brings the proceedings against the Respondents.
8. The title of the pleadings herein does not reflect the 2^nd Applicant to be suing in his capacity as the Vice-Chair of the Association. There is nothing either to show that the Applicants are suing on behalf of some rightful members of the Association. Clearly, there is no doubt that the Applicant’s motives in instituting these proceedings were driven by their own selfish individual interests without taking into account that there are about twenty-four (24) rightful members of the Association who are likely to be greatly affected by their actions in these proceedings.

From the foregoing findings, I hold that the Applicants had no locus standi to institute the instant application as well as the suit.

1. The above holding will now lead me to determine the second issue on whether the orders sought in the application can be granted.
2. In regard to the Applicants allegations that the Respondents have violated the Association’s Constitution by not availing the books of accounts, again I have looked at the provisions of paragraph 16 of the said Constitution which is specific on the procedure of inspection of books of accounts. The Applicants have not shown any evidence that they complied with the said paragraph but the Respondent failed to act. This court is therefore not persuaded that the Respondents have violated that provision of the Associations Constitution to that effect .
3. On the allegations that the Respondents have violated the Constitution of the Association by not calling for the Annual General Meeting (AGM) and elections of the officials of the Association on or before 31^st December, 2024. I have perused through documents more so the minutes filed in these proceedings and I have established that on 13/11/2024 the Applicants attended a meeting whereby it was unanimously agreed that due to logistical issues the inaugural AGM of the Association held in 18/08/2024 failed to appoint an auditor thus the books of accounts could not be audited and the team agreed to have the AGM held in January 2025 since there was no sufficient time left to meet the Association’s Constitutional requirement to hold elections before 31^st December 2024.
4. The 2^nd Respondent herein had in fact issued a notice for annual general meeting to be held on 16/1/2025 and which meeting was temporarily suspended as well as the freezing of all operations with regards to Account No. 01100275429001 held by the Association at Co-operative Bank, Machakos Branch by this Court’s Order issued on 14^th January 2025 following the filing of the instant application under certificate of urgency by the Applicants.
5. Having had sufficient time to read through the Plaint dated 13^th January 2025, the instant application, affidavits and submissions filed by parties and having found that the Applicants lacked locus standi to institute the proceedings herein and also having held that the Applicants may follow the right procedure of inspection of books of accounts as per paragraph 16 of the Associations Constitution, I must say the temporary orders therefore issued in this application on 14/11/2025 must have been issued in error and on non-disclosure of material facts by the Applicants. I find the application as well as the Plaint to be incompetent, frivolous and misplaced.
6. Before I pen off, I wish to also raise a critical issue that goes to the competency of the instant application. The Supporting Affidavit to the application is sworn by TOM M. MUTHAMA, the Applicants’ counsel on record herein who has deponed to matters touching on the Association.
7. The issue then is whether an advocate can swear an affidavit on behalf of his client in a matter he/she is appearing when the clients are available.

Order 19 Rule 3 (1) of the Civil Procedure Rules, 2010 provides that:

“Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove:

Provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.”

Further, Rule 9 of the Advocates (Practice) Rules states:

“No advocate may appear as such before any court or tribunal in any matter in which he has reason to believe that he may be required as a witness to give evidence, whether verbally or by declaration or affidavit; and if, while appearing in any matter, it becomes apparent that he will be required as a witness to give evidence whether verbally or by declaration or affidavit, he shall not continue to appear:

Provided that this rule does not prevent an advocate from giving evidence whether verbally or by declaration or affidavit on formal or non-contentious matter of fact in any matter in which he acts or appears.”

1. Both Rules are intended to prohibit and insulate the advocate from intervening in disputes between his/her clients and adverse parties. See M A Mwinyi Advocate v Matano Mwasina [2021] eKLR where the court in dismissing an application supported by an affidavit sworn by the party’s advocate held that:

“It therefore follows that Advocates, acting on behalf of their clients, should be slow to swear affidavits unless such advocate is privy to all relevant facts”.

1. I am therefore not persuaded that this application is supported by a competent affidavit and despite my earlier findings, in my view the application ought to fail on that ground alone
2. Accordingly, I make the following orders:
3. The Notice of Motion application dated 13/01/2025 is found to be incompetent in substance and the same is hereby dismissed, with the consequence that the temporary orders issued herein on 14/01/2025 suspending the Annual General Meeting and freezing all operations with regards to Account No. 01100275429001 held by Machakos Matatu Owners Association at Co-operative Bank, Machakos Branch are hereby discharged.
4. This court having found that the Plaintiffs/Applicant’s lacked Locus Standi to institute these proceedings, it follows that the Plaint dated 13/01/2025 is also found to be incompetent and the same is struck out.
5. The Secretary of the Machakos Matatu Owners Association is directed to issue a notice for the Annual General Meeting within Seven (7) days following this ruling.
6. Any rightful member of the Machakos Matatu Owners Association may access the Association’s Books of Account in accordance with the provisions of paragraph 16 of the Association’s Constitution.
7. The Respondents will have the costs of this application payable by the Applicants.
8. This file is closed.
9. It is so ordered.

RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 11^TH MARCH 2025  

NOEL I. ADAGI

JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 11^TH MARCH 2025

In the presence of :

Mr. Muthoka.................. …..for Applicants

Mr. Kitindio Musembi........ …..for Respondents

Milly Grace................ …Court Assistant