BY SAM ALFAN.
A bid by former Tetu MP Ndungu Gethenji to take control of the upmarket Kihingo Village estate in Kitisuru in Nairobi has flopped after the High Court dismissed his application.
Justice David Majanja dismissed the application by the MP through Kihingo Village (Waridi Gardens) Management One Ltd, who had sought to block shareholder resolutions electing new directors and removing Ndungu as chairman.
The meeting for his ouster was held at Capital Club on April 13, 2019. The long-running dispute has seen frequent scuffles inside the 42-acre estate and arrests and counter-arrests of the warring parties.
The Kihingo estate was originally developed from 2007 by Kihingo Village (Waridi Gardens) Limited. The equal shareholders in that company were Ndungu, his siblings Gitahi Gethenji, Bob Gethenji and their late mother Hilda.
Another company called Kihingo Village (Waridi Gardens) Management Ltd (KVWGM) was set up to run the estate. Initially, each of the 55 houses in the estate were to have one share each.
During all the legal proceedings, Gitahi, Bob and the late Hilda all agreed that there should only be 55 ordinary shares and no B shares.
Management One was set up in 2010 after the sale of the Kihingo Village houses in 2009. Ndungu and his brother Gitahi had one share in Management One which is still the case today.
Management One purported to hold 60 B shares in KVWGM and thereby to control the affairs of the estate in perpetuity as the B shares would outvote the ordinary shares held by the 55 houses. The CR12 for KVWGM still only shows 55 ordinary shares and has never recognised the 60 B shares claimed by Ndungu.
In 2013 a group of Kihingo residents went to court to dispute the creation of the B shares. And on July 28, 2016, arbitrator John Ohaga ruled that there should be no B shares and only 55 ordinary shares, one for each house on the estate.
The award has not been appealed by Ndungu although he lost an application to set it aside.
Justice Majanja dismissed the Management One suit because it was brought by Chacha Mabanga who was found not to be legally appointed as a director of the company and had therefore no authority to file the case.
The judge ruled that he did not demonstrate that Management One company had held a legally constituted board meeting to authorise the suit.
The ruling now paves way for the executions of the April 2019 meeting resolutions. The resolutions include deleting references to the B shares in the KVWGM; requiring all directors to be house owners; removing Ndungu, Cecil Miller, Eric Giovani and Chacha Mabanga from the KVWGM board and their replacement by Harji Varsani, Samuel Wambu, Mohan Panesar and William Pike; and the replacement of Scribe Services and Woodvale Associates as the company secretary and auditors.
“Having also found that Chacha Mabanga was not qualified to be a director of the plaintiff under its Articles of Association and was not lawfully appointed by Ndungu Gethenji acting alone. Constitutionally Ndungu either acting as one or with Chacha could not authorise the filling of these proceedings on behalf of the plantiff,” said Majanja.
