Though by way of consent, the Court in HC Misc Application No E680 of 2020 entered the first of its kind decision, that online platforms and digital meeting solutions qualified as “venue” for purposes of convening a meeting.
Arising in the time of COVID-19, the matter was originated on a question of whether an AGM had been properly convened given that it was done so on an online platform, between SCANAD and the Capital Markets Authority, -the Court pronounced itself in the order on the impracticability of insisting on physical meetings given the COVID 19 guidelines.
This case was further cited in the decided matter of In re Application for Leave to hold the postponed Law Society of Kenya Annual General Meeting Virtually [2020] eKLR where the Society sought the Court’s pronouncement on the issue of virtual meetings since there was no law addressing the same. The Court relied on the meaning of venue in Black’s Law Dictionary in finding that a virtual platform qualified as a venue stating as follows:
“18. The venue is a place where more than one person may meet and/or congregate. The purpose of physical venue for a meeting is therefore to bring persons to a physical space with a view to them communicating in whatever form and/or manner so as to conduct their business. The ongoing COVID-19 pandemic has brought about innovations to ensure that people still meet and still transact the same business that could also have been transacted in a meeting had they congregated physically. This is being done through various virtual platforms.
- As a virtual platform is a defined space where people can log in at the same time and meet to transact the same business as they would have transacted had they been in a physical space at the same time, it would in the mind of this court be considered as a “venue”. As online banking, online schooling, online consultation and so forth are means by which people interact and achieve their objectives, there is therefore no reason why virtual space could not be recognised and/or accepted as a venue to meet and transact whatever business one may have.”
The Scangroup decision being the first of its kind can be said to have contributed to the Amendment of the Companies Act through the Business Laws Amendment Act No. 1 of 2021 that has sought to include virtual and hybrid i.e part physical part virtual meetings under the definition of general meetings, a step forward an embrace of the changes brough by COVID 19.