Why Kitui’s Mount Kenya
Wholesalers will remain shut
By
Martin Masai
Machakos
August 9 2018
 |
| Mount Kenya Wholesalers premises |
The High Court today dismissed a case challenging the
closure of Mount Kenya Wholesalers by the County
Government of Kitui. Justice George Odunga, sitting in Machakos threw out the case terming it
as incompetent. Justice Odunga said the applicant in the matter- Mr. Simon Mwangi had
distorted material facts about his status in the matter, misleading the court
to grant him leave to proceed with the application.
“In the circumstances
of this case. It is my view (that) the correct entity which should have brought
these proceedings should have been Mt Kenya Wholesalers and not the ex parte
applicant” (Mr. Mwangi), the Judger said.
He explained “In the
pleadings filed in court, the ex parte applicant presented himself as the
aggrieved person. There was no averment at all that the company could not act
on its own name. The ex parte applicant for example stated that it was in fact
him who applied for the license and it was him who was issued with the license.
It is now clear that the license holder was in fact the company.
Mr. Mwangi went to
court ex parte with six prayers seeking to compel the Kitui Chief Officer
Finance Mr. Enoch Nguthu jointly with his Health and Sanitation counterpart Dr.
Richard Muthoka and the County Government of Kitui to unlock Mount Kenya
Wholesalers premises that was closed down on August 3 2018 for failing to meet
minimum Public Health requirements. They also sought reinstatement of their
trading license.
But the court directed
that the matter be hard with the involvement of the sued officials and the
County Government of Kitui before a determination is made on whether to order
the opening of the premises.
When the matter came up
before Judge Odunga, Lawyers Saili Malonza and F Makau raised a preliminary
objection to the matter, charging that Mr Mwangi had no locus standi to
commence the proceedings as Mount Kenya Wholesalers are the holders of the
license and that there was no evidence that the company had made any resolution
authorizing Mr Mwangi to sue on its behalf.
Mr M N Ndegwa and Mr.
CM Ndegwa, acting for Mr Mwangi replied that the current constitution allowed
any person aggrieved by the actions affecting the rights of another person can
institute such proceedings. They further argued that the company could not
commence the case because their premises had been closed hence could not make a
resolution to commence the proceedings.
The judge upheld the
objection and set aside leave hitherto granted. “… The leave granted herein is
set aside and without leave these proceedings are incompetent and are hereby
struck out with half the costs to the respondents”.
