BY SAM ALFAN.
South African based firm Enko Africa Private Equity Fund limited has been allowed to join a case in which the company’s chief operations manager has sued Software Technologies ltd and obtained orders blocking his removal as a signatory to the latter’s bank accounts.
Chaitanya Mukherjee sued Software Technologies and on July 4 obtained temporary orders restraining the company from enforcing its resolution made on June 16, 2022 removing him as a signatory to the company’s bank account.
The Employment and Labour Relations Court allowed the foreign investor to join the suit after making arguing that it has an identifiable stake in the case.
In it court documents, the financial firm added through lawyer Charles Kanjama that the company is one of the shareholders with the highest percentage with singular shareholding of 20.14% at Software Technologies ltd shares.
The firm said it was not involved in approving the actions involved in the Mukherjee claim and documents as filed in court are in contravention to clause 7.1 of the shareholders agreement.
The company added that it has a legal interest as well as clear identifiable stake in the case yet the directors have not been involved in the claim.
“The above matter being litigated on has already affected and will continue to have a direct impact on the Enko Africa Private Equity Fund ltd as it has suffered and continues to be directly affected by the decision of this court and if our rejoinder application is not allowed,” the firm said in the court documents.
Enko Africa Private Equity Fund ltd vice president Tineyi Kuipa who is based in Johannesburg South Africa filed an affidavit supporting the application adding that the company entered into a shareholder’s Agreement and purchased shares of Software Technologies ltd on 18th September, 2018, thereby becoming a shareholder in the said company with 20.14% shareholding as an investor.
The vice president added that Software Technologies ltd meetings including board meetings and decision making on matters are governed by the shareholders Agreement and a clause in the agreement indicate that actions relating to reserved matters, part of which is this instant suit should not be taken without its approval.
He said schedule C clause 2.25 requires the Enko Africa to approve the settlement in any legal proceedings.
The firm denies involvement or approving the action which Software Technologies purportedly took part in the suit including the consensus allegedly reached that led issuance of the order issued on July 4, 2022.
Kuipa added that Enko Africa investment in the Software Technologies was induced by represention made by, amomg others, Mukherjee which Enko Africa discovered were untrue.
He said further activities done by Mukherjee raised serious concerns of potential criminal conduct necessitating a complaint lodged with the Kenya police.
He alleged that these discoveries made by the firm that there were irregular, illegal and unlawful as conducted by, among others, Mukherjee are what led to the impugned resolutions passed regularly during the Software Technologies ‘s board meeting held on 16th July.
“The claimant (Chaitanya Mukherjee) is suspected of fraud in which the applicant (Enko Africa), a foreign investor, stands to lose its investment worth approximately Sh400 million,” said vice president Kuipa.
Kuipa also added that on of the grounds for the termination of Mukherjee’s employment with the Software Technologies is when he commits or suspected of having committed a criminal offence as seen under clause 6.1 of the contract of employment he relies on the case
Mukherjee sued Software Technologies and on July 4 obtained temporary orders restraining the company from enforcing its resolution made on 16th June, 2022 where Mukherjee was removed as a signatory to all the company’s bank account.
Employment and Labour Relations court Judge Anna Mwaure restrained the company from enforcing its resolution made on the same date where Mukherjee was denied access to Software Technologies ltd company premises, software and IT hardware including email address and other company materials.
According to the court order, parties reached consensus where Mukherjee was reinstated as the chief operations director.
The company, however, has vehemently opposed the issuance of the said orders and wants the directive set aside.
The application will be heard on December 5 before Justice Jacob Gakeri.
