Jobs of KTDA directors at risk as they are fined Sh 400,000 or face seven month imprisonment for contempt of court

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Kenya Tea Development Agency (KTDA) Chief Executive Officer Lerionka Ole Tiampati (in the middle) when he appeared in court for sentencing. PHOTO/JAMES KAMETA

By OUR CORRESPONDENT

The Kenya Tea Development Agency (KTDA) Chief Executive Officer Lerionka Ole Tiampati, Company Secretary John Omanga and four directors of Kiru Tea Factory Company have been fined Sh400,000 each for contempt of court.

Others included Messrs Stephen Maina Githiga, Mr Eston Gakunju Gikoreh, Mr Peter Kinyua and Mr Francis Macharia (KTDA director).

The six were found guilty of disobeying an order of the Court of Appeal issued on December 6, 2017. They appeared before Court of Appeal judges William Ouko, Fatuma Sichale and James Otieno-Odek.

They have seven days to pay the fine or serve a seven-month jail term in default. The fate of the six officials hangs in the balance because anyone who is convicted and jailed beyond six months cannot hold public office.

Appellate Judges William Ouko, Fatuma Sichale and John Otieno-Odek decried wanton rivalry for leadership of the 8,000-member factory in Murang’a County and said there were legal mechanisms for removal of directors instead of resorting to uncivilized behavior.

The three-member bench said obedience of court orders was the cornerstone of the administration of justice and punishment was meant to maintain the dignity of courts. Senior Counsel Paul Muite, assisted by lawyer Kithinji Marete, for the tea factory, had demanded six-month jail-terms for each of the officials.

The Appellate Judges rejected a plea by lawyers Waweru Gatonye, Benson Milimo and James Ochieng Oduol to suspend the proceedings for 21 days to enable them challenge the conviction of the six officials before the Supreme Court. The urgent application was placed before Chief Justice David Maraga for directions.

Last week, the aggrieved officials suffered a technical blow when the court rejected their application seeking to nullify the February 22 decision that found them guilty of willful disobedience of court orders stopping them from interfering with the leadership and management of the tea factory.

Court of Appeal judges Fatuma Sichale, William Ouko and James Otieno-Odek. PHOTO/FILE

The six officials had flouted sanctions imposed on December 6 and 21, 2017 against KTDA Holdings and KTDA Management Services from conducting any meetings or causing the nomination of directors of the factory pending an appeal challenging the alleged ouster of its Chairman Chege Kirundi and Company Secretary Bernard Kiragu.

In the protracted case, Kirundi and his allies, who are facing rebellion from the Githiga group, had secured an injunction stopping interference with the giant factory’s leadership.

Kirundi and co-directors Kiragu, John Ngari (Vice-Chairman) and Christopher Mwangi (Auditor) have accused their rivals of trying to paralyse operations of the firm at the behest of powerful individuals who are seeking control of the tea industry in the region.

The Appellate bench had observed that KTDA-HC and KTDA-MS appeared intent on Omanga’s nomination to replace Kiragu and the rivalry between the warring parties was likely to cause considerable harm to the farming community. Omanga was reportedly removed from the Kiru board on September 11, 2017 and replaced by Kiragu.

High Court Judge Msagha-Mbogholi had affirmed Githiga’s suspension by the Kiru board on April 28, 2017 on grounds that he had not exhausted the legal disciplinary machinery provided by law. He was reportedly sacked because of conflict of interest arising from his appointment to head a private large-scale firm in January 2017.

The judges in their ruling said the application they were dealing with was to name and cite the respondents for contempt of court and quoted the case of Director General of Fair Trading v Smith Concrete: Re Supply of Mixed Concrete (1992) QB 212 in which it was held that “for a person to be found in contempt of a court order it is necessary to show that he knew of the relevant order and with that knowledge he intended to do the act which amounted to a breach of the court order; that it is not necessary to show that he intended to disobey the court order.”  

They said the applicant, Kiru Tea Factory Company Ltd, by Notice of Motion dated 13TH December 2017 had moved to court to cite and find the respondents in contempt of the Court of Appeal’s orders issued on 6Th December 2017 by GBM Kariuki, Sichale and Kantai JJ.A at Nyeri.

Kenya Tea Development Agency (KTDA) Chief Executive Officer Lerionka Ole Tiampati, Company Secretary John Omanga , Messers Stephen Maina Githiga, Mr Eston Gakunju Gikoreh, Mr Peter Kinyua and Mr Francis Macharia in the dock. PHOTO/JAMES KAMETA

In the motion, the applicant had prayed for the respondents who were either directors of Kenya Tea Development Agency Holding Company Ltd (KTDA), or directors of Kenya Tea Development Management Services Limited or directors of Kiru Tea Factory Company Ltd  to be committed to six months in jail for contempt.

The grounds in support of the application for contempt were that the respondents convened and held an unlawful and parallel Annual General Meeting (AGM) for Kiru Tea Factory Company Ltd  on 14 December 2017 in contumacious and contemptuous disregard of the injunctive status quo order issued by the Court of Appeal on 6Th December 2017.

The order said in part: “Status quo be and is hereby maintained as of today pending our ruling to be delivered as stated. No elections will be held until the ruling is delivered.”

The judges noted that the orders issued on 6Th December 2017 was explicit that status quo was to be maintained and no elections were to be held. They added that it was not disputed that an AGM was held on 14 December 2017.

“On 6Th December 2017 when this court issued the status quo order, no AGM had been held during the meeting. Consequently, the holding of an AGM on 14 December 2017 contravened the status quo order. The status quo order meant that, pending the ruling of this court slated for 22nd December 2017, no meeting or resolution whatsoever was to be passed altering the Board membership and company secretary for Kiru Tea Factory Company Ltd  as existed on 6Th December 2017,” the judges noted.

They added that the AGM held on 14 December 2017 purported to alter the status quo by incorporating two new directors for Kiru Tea Factory Company Ltd  namely, Mr Michael Kamotho and Mr John Wandurua.

Mr Chege Kirundi one of the Kiru Tea Factory Ltd directors who filed case against KTDA. PHOTO/FILE

“This alteration of status quo was part of the specific act that was prohibited by the order made on 6Th December 2017. Accordingly, we find that whoever convened, presided over and attended the AGM held on 14 December 2017 violated the status quo order of this court if the person had knowledge of that order,” the judges said.

The judges said they were satisfied that the respondents below had knowledge of the order made on 6Th December 2017; Mr S.L. Tiampati (KTDA CEO), Joseph Wakimani, Mr Erastus Gakuya, Mr Francis Macharia, Mr Benson Ngari, Mr Alfred Njagi, and Dr John Omanga (KTDA company secretary).

They add that other respondents who had knowledge of the order made on 6Th December 2017 although there is no evidence of service of the court order include Mr Stephen Githiga who was not served but had knowledge of the order as he convened a public rally on 9Th December 2017 at Kiriaini where he referred to the court order and insisted that the AGM slated for 14Th December would proceed despite the order.

Others included Mr Eston Gikoreh and Mr Peter Kinyua who also attended the public rally on 9Th December 2017 at Kiriaini where they made reference to the court order.

“From the affidavit evidence on record, we are satisfied that, despite having knowledge of the order, the following acts were undertaken by the named individuals in contemptuous violations of the court order of 6Th December 2017,” they add.

They said that Mr Stephen Githiga and Mr Eston Gikoreh convened a public rally on 9ThDecember 2017 in Kiriaini and stated that the AGM scheduled for 14Th December 2017 would proceed as scheduled despite the court order.

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