Kenya: High Court dismisses Ezekiel Mutua’s MCSK case over lack of authority

Delivering the ruling on 27 May, Justice Roselyn Aburili found that the case, lodged on 20 May 2025, had no legal standing as it had not been authorised by MCSK’s board of directors. Mutua had sought to challenge the Kenya Revenue Authority (KRA) over the freezing of a new MCSK bank account, to which he was a signatory.

However, Justice Aburili ruled that Mutua could not transact any business or represent the society, given that his employment had already been terminated. The court further observed that Felix Okiri, the lawyer who filed the case, had been instructed solely by Mutua, without board approval, as required by corporate governance protocols.

According to court records, Mutua’s employment with MCSK was officially terminated on 3 April 2025, via a letter signed by Lazarus Muli on behalf of the board of directors and the society’s members. The termination letter was attached to an affidavit submitted by Okubasu, who also filed a notice of change of advocates and a notice of withdrawal of the suit, dated 22 May 2025.

Justice Aburili clarified that by the time the suit was filed on 20 May, Mutua was no longer MCSK’s CEO and therefore had no authority to swear a verifying affidavit or to instruct legal counsel on behalf of the organisation.

The court stressed that it was not tasked with determining the legality of Mutua’s dismissal, noting that no order had been presented from the Employment and Labour Relations Court (ELRC) to suspend or overturn the termination.

“It follows that the suit could only have been instituted with the authority of the Board of Directors and under the direction of a CEO who was in office at the time as an employee of the company, and not by a CEO whose employment had been terminated,” the ruling read in part.

Justice Aburili also pointed to ongoing governance disputes within MCSK, stating that such matters must be resolved internally before the organisation can proceed with formal legal action.

During the hearing, the court reviewed an earlier order issued on 8 December 2024 in a separate case (HCCOM E730/2024), which suspended the implementation of resolutions passed by a caretaker interim board appointed at an extraordinary meeting on 6 August 2024. That order prohibited those individuals from acting as directors or transacting any business on behalf of MCSK.

Based on that previous ruling, Justice Aburili concluded that the individuals who allegedly instructed Okiri were not legitimate directors. The court further noted that MCSK’s board had rejected Okiri’s appointment during a meeting held on 5 May 2025. Consequently, the court accepted the notice of change of advocates filed by Okubasu & Munene Advocates, alongside the notice of suit withdrawal, as properly authorised.

In contrast, a second notice of change of advocates filed by Okiri on 26 May 2025 was declared invalid.

“Before I conclude, I note that Mr Felix Okiri has filed another notice of change of advocates dated 26 May 2025. In view of my findings above, the said notice is hereby struck out and expunged from the court record for want of legitimate authority to represent the applicant company,” Justice Aburili ruled.

“In the end, I adopt the notice of withdrawal of suit dated 22 May 2025, signed by Okubasu & Munene Advocates, as counsel duly instructed to represent the applicant company.”

The ruling comes just days after MCSK’s Board of Directors publicly confirmed that Mutua had been dismissed effective 3 April 2025.

In a notice issued on 8 May 2025, the board warned the public that Mutua no longer had the authority to act on behalf of MCSK, urging caution in any dealings with him.

Additionally, the board accused the former CEO of refusing to return property belonging to the society following his dismissal, including a company vehicle and access to social media accounts.