|Civil Case 73 of 2010
|FRANCIS MWASHI, MATHEW TSIMBANGI, SAMUEL OMUGA & ALFRED AGEVI (suing as the Registered Trustees of the East Africa Yearly Meeting of Friends) v LUCAS MUDOGA, MICHAEL SAMBWA, DAN AGEVI, DAVID MAJANI & JOSEPHAT KILUMA
|14 Apr 2011
|High Court at Kakamega
|FRANCIS MWASHI & 3 others v LUCAS MUDOGA & 4 others  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
CIVIL CASE NO. 73 OF 2010
V E R S U S
(c) The Defendants acting by themselves or their agents be and hereby restrained by way of a temporary injunction from interfering with the society’s assets, property and affairs and/or convening any meeting purportedly on behalf of the board of trustees of the society pending the hearing and determination of this suit.
2. The Grounds in support are the following;
(ii) The Defendants have unlawfully, unprocedurally and unconstitutionally caused their names to be lodged with the registrar’s office as the society’s office bearers.
(iv) The Defendants have over the years failed to file returns with the registrar of societies.
(vi) The society’s assets are in danger of being depleted and its accounts is being wasted.”
i) he is a registered trustee of the entity known as East Africa Yearly Meeting of Friends which is otherwise known as “the Quakers” and who practice the Quaker faith.
iii) the society is empowered by the Society’s Constitution to elect officials to manage its affairs and that the Respondents were elected as members of the Society’s Executive Committee.
v) the Registrar of Societies as a result thereof had threatened to cancel the Society’s certificate of registration.
vi) the Respondents have been in office illegally because the amendments to the Society’s Constitution in April 2009 was illegal.
vii) the Respondents, in office unlawfully, have mismanaged the affairs of the Society and destroyed its assets in a wanton manner, hence the need for the interlocutory injunctive relief.
5. Further, that the Board of Trustees comprises six (6) members and not all of them consented to the suit being filed.
7. Regarding alleged improprieties, it is argued that no audited Report of Accounts of the Society have been exhibited and it is unclear what alternative the Applicants have offered should the Respondents be stopped from conducting the affairs of the Society.
9. As for the alleged unlawful amendment of the Constitution, it is the case for the Respondents that it was the 1st Applicant who chaired the Constitutional Committee that was entrusted with amendments to the Constitution and he cannot now deny his creation.
11. Lastly, that the Application for injunction should be dismissed with costs.
13. As regards the present Application, I have seen a letter dated 16.4.2010 from the Registrar of Societies indicating who the Society’s office bearers are, i.e.;
14. I have also seen the Society’s Constitution and I note that although Article IX(1) provides that members of the General Board shall serve for three (3) years and eligible for “re-appointment” for more than six (6) years, Article XIV allows for amendment of the Constitution and from the facts presented by the Applicant, I am not satisfied that a case has been made out that the amendment to increase the term of office was patently done in contravention of the same constitution. How can what is done pursuant to the constitution be said to be unconstitutional unless it can be shown that the process leading to the action was itself unconstitutional? In the present case, the facts are merely stated without explanation and moreover, it was the 1st Applicant who was Chairman of the Society’s Committee on the Constitution and the result of his work were amendments to the Constitution. He has not shown at what point his Committee’s proposals became unconstitutional and he has not denied that the amendments were properly handled by the General Board or the Yearly Meeting pursuant to Article XIV aforesaid.
16. Lastly, I have above stated that the Registrar of Societies clarified the office bearers. I have seen no letter threatening cancellation of the Society’s certificate of registration and in the end, a lot of what is contained in the Application is no more than the protestations of Francis Mwashi, which may appear genuine but is unbacked by any serious evidence.
18. Orders accordingly.
J U D G E