The Court of appeal has struck out an application by Kihingo Village (Waridi Gardens) Management one limited Company on directorship of a multi-million Kihingo Estate.
Judges Roselyn Nambuye, Wanjiru Karanja and Hannah Okwengu on April 23,2021 ruled that a court should guard jealously against issuing orders in vain.
“Granting reliefs sought by the applicant,in light of the uncontested position highlighted above,will be the same as issuing and order in vain,”the panel ruled.
They added that the orders which were being sought which is the registration of new directors and change of bank signatories has already been effected.
“There are fears that the respondent may commit the company in transacting with third parties likely to result in liabilities being occasioned to the company.There is however no deposition that such liabilities are likely to be irreversible,”added the panel.
In the application for the appeal, Gitahi Githinji who is the brother to the former Tetu Member of Parliament and also the other director and shareholder of Kihingo Village (Waridi Gardens) said that the company has two directors and shareholders who are him and his brother James Ndungu Githinji.
In reply,Gitahi had said that at no material time was any meeting of the shareholders or the board of directors ever called to authorize James Ndungu Githinji to swear the supporting affidavit dated January 14,2020.
“Even if the year the supporting affidavit is dated was a typographical mistake,at no time was any meeting ever called prior to January 14,2021 authorizing the deponent to instruct any advocate to file the present application in the court of appeal,”said Gitahi in his affidavit.
He said he would never had authorized the filing of the present application even if a meeting had been called as it would go against arbitral award,the majority rule of the shareholders in the management company and the judgement of judge David Majanja.
The panel ruled that considering the reply by Gitahi,the appeal application was incompetent.
Gitahi said he a stranger to any company resolution authorizing the filing of the application under consideration on behalf of the company and second,instructing the advocate on record for the company to act for the company.
The panel ruled that because all the applicants purports to forestall was in fact effected long ago and the application is therefore an exercise in futility.
Management one limited had moved to the court of appeal seeking orders stopping the implementation of the purported resolutions of Kihingo Village(Waridi Gardens) Management company prepared by the respondents arising from a special general meeting held on April 13,2019 at Capital Club ,pending the hearing and determination of the appeal.
The Company wanted the court of appeal to restrain the respondents from interfering with the participation of the applicant’s representatives in the board,administration,management and general running of the affairs of Kihingo Village (Waridi Gardens) Management Company,pending the hearing and determination of the appeal.
Former MP Gethenji was appealing against the judgement of judge David Majanja that ruled that Chacha Mabanga was not qualified to be a director of the company and was not lawfully appointed by Ndungu Gethenji acting alone.
“Ndungu Gethenji and either acting alone or with Chacha Mabanga could not authorize the filing of these application on behalf of Kihingo Village (Waridi Gardens) Management one limited Company,”ruled Majanja.
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