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Kyalo & 3 others v Central Church Council (Sued Through William Musyoka Kilunja Being Chairman Of Church Board Trustee & 16 others (Petition 4 of 2021) [2022] KEHC 386 (KLR) (5 May 2022) (Ruling)

Kyalo & 3 others v Central Church Council (Sued Through William Musyoka Kilunja Being Chairman Of Church Board Trustee & 16 others (Petition 4 of 2021) [2022] KEHC 386 (KLR) (5 May 2022) (Ruling)
Citation
Kyalo & 3 others v Central Church Council (Sued Through William Musyoka Kilunja Being Chairman Of Church Board Trustee & 16 others [2022] KEHC 386 (KLR)
Media Neutral Citation
[2022] KEHC 386 (KLR)
Court
High Court
Court station
High Court at Machakos
Outcome
Dismissed
Case number
Petition 4 of 2021
Attorneys
Kamende, Kanjama,
Judges
GV Odunga
Judgment date
5 May 2022
Language
English
Type
Judgment
Original source file
Download DOCX (76.5 KB)
Collections
Date published
31 May 2022
Case action
Ruling
Court division
Constitutional and Human Rights
Filing county
Machakos
Order
1.Proceedings declared incompetent for failing to satisfy the threshold of a Constitutional Petition. 2. Petition was struck out but with no order as to costs
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1.By a Notice of Motion dated 8th November, 2021, the 2nd Respondent herein, seeks the following orders:1.That service of this application be dispensed with in the first instance and the same be certified as urgent and the same be heard ex-parte2.That the Honourable Court be pleased to set aside the orders dated 21st September 2021.3.That in the alternative the Honourable Court be pleased to issue orders that the 2nd Respondent withdraws Kshs 2,252,010.00 from the Accounts held with Good News Church of Africa4.That the costs of this application be in the cause
2.The Motion was based on the following grounds:a.That the Petitioner is guilty of material non-disclosure.b.That the 2nd Respondent is one of the duly elected and authorised officials of the Good News Church (‘The Church’) through elections conducted in 2016 therefore authorised to conduct the day-to-day running of the Church as per the law and the Church Constitution.c.That the 2nd Respondent and the duly elected officials need funds to be able to make various payments, daily and monthly for the smooth running of the affairs of Good News Church.d.That the 2nd Respondent is in need of Kshs 2,252,010.00 to make payment of legal fees, salaries, meetings, various maintenance and construction which amount has become due and owing to various service providers.e.That the 1st Respondent is not an official and member of the Church since he was excommunicated in 2019 and has since seized to be a member of the Good News Church therefore does not have any authority to conduct any business on behalf of the Church.f.That the said orders are vague and are detrimental to the Church in that they are very restrictive in that every time the church wants funds above 500,000 it has to file an application before this court so that it can obtain such funds.g.That the said orders do not specify the frequency in that is it Kshs 500,000 per day, week month or year.h.That the elections that had been scheduled to be held should be allowed to proceed as planned.i.That it is in the interest of justice that the orders dated 21st September 2021 be set aside.
3.The said Motion was supported by an affidavit sworn by Archbishop Alfred Kituva, the 2nd Respondent herein who deposed that he was one of the duly elected officials of the Good News Church (‘The Church’) through elections conducted in 2016 and is thus authorised to conduct the day-to-day running of the Church as per the law and the Church Constitution.
4.According to the deponent, under Clause 5.0 of the Constitution of the Church, the Church has been divided into 5 levels of Administration being the Local Church Council, The District Church Council, Regional Church Council and Central Church Council. In running and operating the said church, it was deposed that the 2nd respondent is a member of an Executive committee that consists of 8 office bearers and 5 Bishops who make decisions of the income and expenditure of the Church. The accounts are afterwards presented to the Central Church Council that consists of 96 members from 24 regions who scrutinize the accounts and offer checks and balances. According to him, all decisions in regards to the operations of the Church are made by the Central Church Council for example conducting of Elections and expenditure.
5.It was deposed based on legal advice that the Petitioners/Applicants are guilty of material non-disclosure in that:a.None of the Petitioners are members of the Executive Committee, Full Council or Central Church Council.b.All the moneys withdrawn are accounted for to the various representatives through the central church council, regional church council, district church council and local church council, the Petitioners are not members of any of these councils.c.That the Executive committee of the Church prepares budgets and the budgets are approved by the full council consisting of 96 members.d.That the issues of Amendment of the Constitution is a live issue before Machakos High Court in Machakos HCCC No 15 of 2019 which matter was scheduled for hearing but was postponed due to the unavailability of the Plaintiffs witness.e.That the issue of various functions of the committees of the church is a live issue in Nairobi Petition No E375 of 2021 filed by the same firm of advocates.f.That none of the issues raised in this petition are new, all these issues are in various courts of competent and concurrent jurisdiction therefore there is a risk of different ruling/judgments being delivered in the different matters.
6.According to the deponent, the process of amendment of the Church Constitution started in 2018 and the same was completed in 2020. The full council adopted the same in February 2020 and registered the constitution with the 3rd Respondent, various elections were held so that the church can comply with the constitution. The elections of the Central Church Council was done on February 2020 and officials elected. The Area Church Council elections were held and completed on May 2020. The current elections are for District Church Council, Local Church Council and Area Church Council. It was deposed that the Central Church Council has approved payment of Kshs 2,252,010.00 being moneys needed to make payments to service providers, salaries and recurring expenditure of the Church. According to him, the 1st Respondent is not the chairman of the Church Board trustee as he was excommunicated from the church and therefore is not authorised to conduct any dealings on behalf of the Church.
7.The 2nd Respondent further set out the sums of monies due and owing to third parties whose failure to pay might lead to suits against the church and officials of the Church including himself. It was his averment that these sums needed for the smooth running of the church together with its various branches. However, since the orders were issued by this Court, the Church has run in arrears and has been unable to settle its debts therefore necessitating the church officials to use their own funds so that the Church can run. It was disclosed that as a result of constant interference with the functions of the Church officials, the court in Nairobi E3984 of 2020 issued various orders that are still in force.
Respondent’s Submissions
8.On behalf of the 2nd Respondent it was submitted that the 2nd, 4th and 5th Respondents have demonstrated that they are the duly elected officials of the Good News Church of Africa and are mandated to operate and run the church and that the 5th Respondent is the treasurer whose function is to account and make payment of the Church moneys when they are due among other functions. In order to run the church, there are various employees who are paid by the 5th Respondent through the Church funds and there are various monthly recurrent expenditures that have to be settled. It was submitted that the Respondents have demonstrated through the further affidavit that there are not only monthly recurrent expenditures that have to be settled, there are Capital and other expenses that are due and owing to Third parties who do not have any business with the dispute that is ongoing between the parties. It was urged that the Court can sanction and direct the 2nd, 4th and 5th Respondents to make payments for settlement of lawful debts of the Church.
9.According to the Applicants, the failure for the 2nd, 4th and 5th Respondents to pay the lawful debts that are due will affect the livelihoods of third parties and might result to avoided suits. The Court was accordingly urged to allow the 2nd, 4th and 5th respondents to withdraw the funds as itemized in paragraph 6 in the further affidavit dated 10th December 2021.
10.Regarding whether the Orders dated 21st September 2021 should be set aside, it was submitted that the Petitioners/Applicants are guilty of material non-disclosure in that:a.None of the Petitioners are members of the Executive Committee, Full Council or Central Church Council.b.All the moneys withdrawn are accounted for to the various representatives through the central church council, regional church council, district church council and local church council, the Petitioners are not members of any of these councils.c.That the Executive committee of the Church prepares budgets and the budgets are approved by the full council consisting of 96 membersd.That the issues of Amendment of the Constitution is a live issue before Machakos High Court in Machakos HCCC No 15 of 2019 which matter was scheduled for hearing but was postponed due to the unavailability of the Plaintiffs witness.e.That the issue of various functions of the committee and groups of the church is a live issue in Nairobi Petition E375 of 2021 filed by the same firm of advocates.f.That none of the issues raised in this Petition and application are unique and or new, all these issues are in various courts of competent and concurrent jurisdiction therefore there is a risk of conflicting decisions being delivered in the different courts.
11.According to the Applicants, with a large number of pending cases, the judiciary is overburdened and faces a stark lack of resources. In a situation like this, when two suits arising out of the same issues between the same parties are brought before the courts, there is bound to be wastage of resources and frivolous litigation. In order to correct this redundancy, there exists the doctrine of sub judice which is captured in section 6 of the Civil Procedure Act.
12.According to the Applicants, both suits challenge the same decision. The prayers sought in both suits are the same. Since both the suits cite similar issues, the decision of the first suit should be binding on those issues and it need not be tried again. If the plea in the first suit succeeds, then it will render the second case res judicata. This truth renders the second suit useless and of no utilitarian value. A second trial on the same issues would entail duplication of work as evidence required to prove those issues in the first suit would be similar to those in the second suit (read instant suit). Thus, it is desirable that such issues be resolved or adjudicated by one court only. It will avoid conflicting decisions or complications arising therefrom.
13.It was submitted that in order to check this very problem, there exists the concept of sub judice which in Latin means “under Judgement.” It denotes that a matter is being considered by a court or judge. The concept of sub judice that where an issue is pending in a court of law for adjudication between the same parties, any other court is barred from trying that issue so long as the first suit goes on. In such a situation, order is passed by the subsequent court to stay the proceeding and such order can be made at any stage.
14.In this regard, the Applicants submitted that section 6 of the Civil Procedure Act expressly provides that no court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
15.In this case it was contended that from a causal look of these 3 matters several similarities can be noted that:a.The Parties to the suit are the same except that in this present suit the petitioners hid under different petitioners and have introduced the Registrar of Societies as a party.b.The petitioners acknowledge the existence of the above suits.c.That all matters refer to the Court order issued on 24th August 2020 in Milimani Civil Suit No E3984 of 2020.
16.From the foregoing, it was submitted that clearly the suits seek similar orders and that there is a high likelihood that there will be conflicting decisions. In the Applicants’ view, the Petitioners are filing matters that are essentially Civil matters and christening the same as Constitutional Petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary Civil Courts, a party ought not to invoke the jurisdiction of the Constitutional Court. Reference for this proposition was made to the case of Abraham Kaisha Kanziku v Governor of Central Bank & others [2006] eKLR. They also referred to the case of Godfrey Paul Okutoyi & others v Habil Olaka & another [2018] eKLR, Bernard Murage v Fine Serve Africa Ltd & others [2015] eKLR and Patrick Mbau Karanja v Kenyatta University [2012] eKLR.
17.It was urged that having shown, in the preceding paragraphs that the Petitioners’ case is not only destitute of merit but also unfounded on cogent issues and cardinal principles of law, it follows that the granting of the orders sought by the Petitioners will tone down the spirit of the Constitution in protecting the citizens of this country as well as debilitate the architecture of our justice system and the court was urged to make a finding that the Application dated 8th November 2021 is merited and should proceed to set aside the orders issued on 21st September 2021 and or issue orders granting further withdrawals of the Church Accounts by the 2nd, 4th and 5th Respondents.
Petitioners’ Case
18.It was the Petitioners’ position that the parties in this petition are different from the parties in the other related suits and none of the parties in this suit can claim through any other party for redress of the issues raised in this case. It was also contended that the subject matter in this suit is similarly different from the subject matter in the other suits and that the reliefs sought are neither the same nor founded on the same cause of action. Further, the matter in issue is not directly or substantially in issue in any of the other cases.
19.It was contended that the courts before which the other cases are being civil, lack the legal jurisdiction to determine issues of abuse of human rights. To the petitioners, he issues raised in this case occurred after the other cases had been filed hence new and completely different issues and that the parties cannot successfully seek to amend their pleadings to accommodate the new issues.
20.It was submitted that the petitioner herein is the entire membership of the Church, the laity congregating and worshipping under the more than 200 different local church branches. It was submitted that the petitioners have approached this court in their capacities, not as leaders but as members of the church against those purporting to hold leadership positions in the church for failure to enable the church achieve its objectives. To the petitioners, the parties in this case are the church against the various factions of the Church purporting to run the church.
21.It was contended that in Machakos HCCC No. 15 of 2019, the 1st Plaintiff, Peter Mwangangi, having been expelled from the church cannot be said to represent the church. Similarly, the 1st Plaintiff was expelled from the church hence cannot represent the church. It was further explained that in the said case there was the issue of the amendment of the 2004 Church Constitution which has been overtaken by events as the same was amended from 2018-2020 and is now in force. Further the purchase of some plots in Mlolongo and accountability of the funds is not issue in this petition though it was in issue in the other cases.
22.To the petitioners, in this case, they are inviting the court to remove the persons holding office to enable them hold fresh elections.
23.Regarding Milimani CMCC E3984 of 2020, and HCCA 126 of 2021, it was contended that the same are founded on trespass on church property, creation of church leadership and accountability. It was contended that a judgement in the former, shall only be a judgement in personam and not I rem hence will have little effect as it will be directed conclusively against the 14 defendants or three plaintiffs.
24.According to the petitioners, the same having been instituted in a Magistrate’s Court, that Court lacks the jurisdiction to handle issues of the financial magnitude raised in this petition.
25.It was submitted that since the issues raised in this petition do not fall under Article 25 of the Constitution, this Court is the only Court competent to deal with the issues herein.
26.As regards Milimani Petition E375 of 2021, it was contended that the case is between Pumwani Church against the 2nd Respondent hence the parties are different. The cause of action, it was contended is the closure of the Pumwani Church under the pretence of enforcing court orders to which Pumwani Church was not a party. It was therefore contended that the causes of action are not the same.
Respondent’s Response
27.In response to the application, the 1st Respondent, William Musyoka Kilungya swore a replying affidavit in which he deposed that though he was elected as a Trustee of Good News Church of Africa on 29/10/2016, he was illegally, irregularly, without any justifiable cause, and without following due process removed from this Position. He averred that the 2nd Respondent and a few officials without any basis suspended him from the Church leadership on or about 27/04/2019 for a period of six months and subsequently removed him and later ex-communicated him from the Church on or about 15/04/2020 without being given a chance to defend himself because he was demanding that they follow Biblical and the Church rules whilst upholding high standards of accountability and responsibility in the discharge of their mandate.
28.He averred that one of the reasons the Petitioners and many other church members still think that he is a Trustee of the Church illustrates the opaque and non-transparent manner in which the 2nd Respondent and his team are perpetuating illegalities without informing the members for fear of rebellion by the members. He deposed that as the Chairman of the Trustees his duties entailed being a signatory of the Church Accounts, being involved in meetings deliberating on matters touching on finances which includes among others withdrawal of money, being custodian of the Church Assets.
29.He averred that during the period he was in office, the 2nd Respondent/Applicant and his team refused to allow the change of Signatories to allow him take over his duties and despite repeated calls and demands they refused to allow him to have access to records of the Church Assets including land, motor vehicles hence he was unable to carry out his duties effectively. Further, though he was in charge of the Church accounts as a Trustee, the 2nd Respondent/Applicant and his team did not allow him to have access to financial records, participate in meetings on matters finance or other related business. As a result of the unending failure of leadership, misappropriation of funds and irresponsible behaviour on the part of the 2nd Respondent/Applicant and his team, there have been numerous suits among them the following:a.Machakos Civil Suit 15 of 2019 - Muema Ndungi and Rev. Peter Mwangangi vs. Raphael Kituva and 7 others.b.Milimani Civil Suit No. E3984 - Good News Church of Africa and 3 others vs. Rev Isaac Bett and 14 others; andc.Appeal Case E 126 of 2021 - Rev Isaac Bett and 14 others vs. Good News Church of Africa and 3 others; andd.Nairobi Petition E375 of 2021 - Joseph Kaunda trustee Pumwani Local Church vs. Raphael Kituva, The OCS Kamukunji Police, the Inspector General of Police;
30.It was claimed that the 2nd Respondent and his team have been running the affairs of the Church without due regard to the Bible, the Church Rules and the national laws hence the incessant disputes. He insisted that the alleged Constitutional amendment done on or about the years 2018-2020 was done illegally, irregularly and without involving the Church membership which forced some church members to file Machakos Civil Suit 15 of 2019 - Muema Ndungi and Rev. Peter Mwangangi v Raphael Kituva and 7 others which is still pending in Court wherein some of the prayers were:“…d)An order that the Defendants should not change the Church’s Constitution without following the due process.e)A declaration that the Defendants either severally or jointly are in breach the Church’s Constitution.f)An order for removal any of the Defendants from office for being in breach of the church’s Constitution.”
31.To the deponent, the 2nd Respondent as the Arch-Bishop of the Church ought to have known that it was in the interest of all church to involve all members before any Constitution was changed. He averred that the office terms of all the Officials who were elected in the year 2016 ended on 30/10/2021 after lapse of five (5) and by then all the posts should have been filled through duly scheduled elections hence the 2nd Respondent is not an official of the Good News Church of Africa (GNCA) in terms of the Church Constitution 2004. It was his view that even if the Constitution alleged to have been amended in 2020 was to be followed, election should have started at the Local Church Council all the way to the Central Church Council after which the 2nd Respondent would have been elected if at all. He noted that the 2nd Respondent stated that there were elections of the Central Church Council and the Area Church in 2020 without having elections for lower levers clearly shows that the Applicant is always out to go against the law of the land and Church.
32.The deponent’s view was that it is not in the interest of justice and of the majority of the members to have the Applicants allowed to access more funds whereas there have been incessant calls for accountability on the part of the Applicants on management of church funds leading to numerous suits which have been very costly to the Church. He disclosed that the Plaintiffs in Machakos Civil Suit 15 of 2019 - Muema Ndungi and Rev. Peter Mwangangi v. Raphael Kituva and 7 others had sought to be supplied by audited accounts of the Church and or allow independent auditors to carry out audit of the Church Accounts but the Applicant and his team have never complied.
33.While noting that it is a legal requirement that Churches are supposed to have audit report done annually, it was averred that the 2nd Respondent in a bid to cover up his illegal acts has failed and or refused to allow an audit. In his view, the Application is unfounded, mischievous and aimed at perpetuating the illegal acts being carried out by the persons purporting to be elected leaders of the Church whereas they were not duly elected as officials. He therefore sought that the Application be dismissed with Costs to the Respondents.
34.It was submitted on behalf of the 1st Respondent that
Interested Parties’ Case
35.On their part, the interested parties while indicating that they were opposing the applicants’ case concentrated on the issue of the withdrawal of the money but did not address the prayer for setting aside the orders on the grounds of the existing suits.
36.According to them, the Regional Church Councils were not involved in electing the Area Church Councils hence the same were unconstitutional and it was unconstitutional to purport to elect the Central Church Council without starting from the grass roots as required by the constitution; that is from Local Church Councils to District, Regional the Area and lastly Central Council. In their case, the constitution in clauses 7-9 envisages a combined election from the lowest to the highest council within 3 months, and not to divide elections for a period exceeding one year as purported.
37.They averred that the land parcels purchased at Mulolongo, which are the subject of the Machakos Civil Case 15/2019 have disputes that have never been settled and that together with the 1st Petitioner and other church elders, they visited the said parcels and found out that all of them are bushy and empty.
38.The interested parties explained that according to the church constitution, there exist different committees at all level of the church administrative units that handle different issues and that in respect to construction of any structure exceeding Kshs 100,000/- on any local church facility, the different committees work together to come up with a plan that is approved by the Councils responsible. It was their position that it is not the duty of the Central Church Council to withdraw funds from its accounts to meet construction needs at any district level, unless the said District Council requests through the Regional Council the Central Church Council. Accordingly, the quotation filed by the 2nd Respondent was generated unconstitutionally, without proposals and approvals from the relevant committees, and that there being no church proposed to be established at Mulolongo, the whole issues cannot be unilaterally decided and handled by the Central Council.
39.The interested parties while disputing the expenditures mentioned by the 2nd Respondent averred that the 2nd Respondent failed to reconcile the accounts of the money he purports to be due and owing to third parties. It was further alleged that the monies allegedly demanded are payable by different Councils and not the Central church accounts; hence the same should be demanded from the said responsible councils.
40.It was therefore their position that the Orders sought by the 2nd Respondent cannot be granted on the grounds that;i.The same being equitable, the 2nd Respondent has failed the precision of not only stating what exactly he wants Kshs 3,008, 910/- as stated in paragraph 6 of his supporting Affidavit, or he wants Kshs 2,618,910/-as stated in his annextures, or Kshs 2,212,010 as indicated in the letter dated 30/10/2012 addressed to Kanjama advocates, or Kshs 2,252,010/- as prayed in prayer 2 of his application.ii.The 2nd Respondent has also failed to meet the equitable test, and being it breach of the church constitution, equity does not assist law breakers;iii.The 2nd Respondent has failed to establish a prima facie case, he has-failed to demonstrate any injuries he is likely to suffer that cannot be paid by damages, and the balance of convenience does not tilt is his favour, but tilts in favour of the church which stands to lose its money irrecoverably on inaccurately presented accounts and unconstitutionally made demands.
Determinations
41.I have considered the issues raised in the preliminary objection and in the application dated 8th November, 20221. In my view the same call for determination of the following issues:1.Whether the Petitioners were guilty of non-disclosure of material facts when they obtained the orders of 21st September, 2021.2.Whether the issues the subject of this petition are properly matters that ought to be dealt with as a constitutional petition or are matters that are purely civil in nature.3.Whether the issues raised herein are sub judice in that the subject of this matter is similar to the ones pending before other courts.
42.According to the 2nd Respondent/Applicant, the non-disclosure stems from the following facts:1.None of the Petitioners are members of the Executive Committee, Full Council or Central Church Council.2.All the moneys withdrawn are accounted for to the various representatives through the central church council, regional church council, district church council and local church council, the Petitioners are not members of any of these councils.3.That the Executive committee of the Church prepares budgets and the budgets are approved by the full council consisting of 96 members.4.That the issues of Amendment of the Constitution is a live issue before Machakos High Court in Machakos HCCC No 15 of 2019 which matter was scheduled for hearing but was postponed due to the unavailability of the Plaintiffs witness.5.That the issue of various functions of the committees of the church is a live issue in Nairobi Petition No E375 of 2021 filed by the same firm of advocates.6.That none of the issues raised in this petition are new, all these issues are in various courts of competent and concurrent jurisdiction therefore there is a risk of different ruling/judgments being delivered in the different matters.
43.I will only deal with the matters 1-3 above at this stage since the other matters form the subject of a separate issue in this ruling. It has been held that what is material and what is not must depend on the particular circumstances of the case. This issue was deliberated upon at length in Bahadurali Ebrahim Shamji vs. Al Noor Jamal & 2 others Civil Appeal No. 210 of 1997 where the Court of Appeal stated:“The material facts are those which it is material for the judge to know in dealing with the application made; materiality is to be decided by the court and not the assessment of the applicant or his legal advisers…it is not every omission that the injunction will be automatically discharged. A locus pentitentiae (chance of repentance) may sometimes be afforded. The Court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to make a new order on terms: when the whole of the facts, including that of the original non-disclosure, are before it, the court may well grant such a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed…It is accepted that in cases of ex parte proceedings there must be full and frank disclosure to the court of all material facts known to the applicant but in the instant case everything was in the court record and was available to the learned judge for perusal. There was no deliberate concealment on the part of the respondents.”
44.It is clear from the foregoing that the decision whether or not there is material non-disclosure rests purely on the court and not on the legal advisers. Secondly, even where there is non-disclosure the court has to weigh and determine the weight to be attached to the same and the Court may, notwithstanding the non-disclosure excuse the same. In other words, the decision whether or not to decline a relief based on material non-disclosure is discretionary. In this case the facts relied upon to found a contention that there was material non-disclosure of material facts as set out in 1-3 above are matters which go to the merit of the application itself which was the basis of the order sought to be set aside. A determination that there was non-disclosure of material facts based on the said matters would have the effect of rendering the application itself superfluous since that determination will have in effect determined the substratum of the application itself.
45.In my view a determination setting aside ex parte orders on the ground of non-disclosure of material facts ought as much as possible to avoid findings which may well dispose of the application which is yet to be heard on its merits. I therefore find that at this stage it is premature and imprudent for this Court to conclusively decide on the materiality of the undisclosed facts. Accordingly, that ground fails.
46.The next issue for determination is whether the subject matter of this matter is similar to the ones pending before other courts. In other words, is this matter sub judice? That an issue going to the locus and whether the matter is res judicata can properly be taken as preliminary objections as long as the other conditions precedent are satisfied was appreciated in Omondi vs. National Bank of Kenya Ltd & others [2001] KLR 579; [2001] 1 EA 177 where it was held that the objection as to the legal competence of the Plaintiffs to sue and the plea of res judicata are pure points of law which if determined in the favour of the Respondents would conclude the litigation and they were accordingly well taken as preliminary objections. That must be so because a court is barred from entertaining an issue which has been finally determined by a Court of competent jurisdiction.
47.The doctrine of sub judice is, however, codified in Section 6 of the Civil Procedure Act which provides as hereunder:No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
48.Therefore, for the principle to apply certain conditions precedent must be shown to exist: First, the matter in issue in the subsequent suit must also be directly and substantially in issue in the previously instituted suit; proceedings must be between the same parties, or between parties under whom they or any of them claim, litigating under the same title; and such suit or proceeding must be pending in the same or any other court having jurisdiction in Kenya to grant the relief claimed.
49.The rationale for this principle was restated in Kampala High Court Civil Suit No. 450 of 1993 - Nyanza Garage vs. Attorney General in which the Court held that:“In the interest of parties and the system of administration of justice, multiplicity of suits between the same parties and over the same subject matter is to be avoided. It is in the interest of the parties because the parties are kept at a minimum both in terms of time and money spent on a matter that could be resolved in one suit. Secondly, a multiplicity of suits clogs the wheels of justice, holding up resources that would be available to fresh matters, and creating and or adding to the backlog of cases courts have to deal with. Parties would be well advised to avoid a multiplicity of suits.”
50.It was therefore held in Barclays Bank of Kenya LtdElizabeth Agidza & 2 others [2012] eKLR that:“…if the controversy in the subsequent suit can be conveniently and properly adjudicated upon in the previous suit, by virtue of the enactment of Sections 1A and 1B of the Civil Procedure Act, Section 6 will still apply. This is so because the overriding objective of the Civil Procedure Act is for expeditious and proportionate resolution of civil disputes between parties. My view is that the circumstances obtaining in 1953 when the Jadna Karsan –vs- Harnam Singh Bhogal was decided are completely different from the circumstances obtaining now. The circumstances obtaining at the time of the enactment of Sections 1A and 1B of the Civil Procedure Act were that there is constraint in judicial time and therefore a lot of pressure on the courts to expedite resolution of civil disputes. My view therefore is, if a substantial part of the matters in issue of controversy in the subsequent suit is covered by the previous suit, Section 6 should be invoked to save the precious judicial resources.”
51.In Milimani Petition E375 of 2021 (the Pumwani Petition), which was filed by the Local Church Council Good News Church Pumwani Branch through a trustee, one Joseph Kaunda, against the 3rd Respondent herein and other government officials, the cause of action was that the Respondents closed down the Petitioner’s Church without any legal or due cause hence infringing upon the rights of the Petitioner’s membership. It was contended that the said action violated the Petitioner’s rights under various Articles of the Constitution which were set out.
52.As regards, Nairobi CMCC No. E3984 of 2020, the suit was filed by the 1st, 2nd, 4th and 5th Respondents in which they sought orders restraining the Defendants therein who are not parties to this petition from interfering with the running of the Church. It was the orders issued in that suit that gave rise to Milimani HCCA No. E136 of 2021 which was filed by the Defendants before the lower court.
53.There was however an earlier suit filed by Muema Ndungi who was the 14th Defendant in the CMCC and Rev. Peter Mwangangi who was the 2nd Defendant in the same case. The suit was against the Plaintiffs in the CMCC and other persons. In the said suit, the plaintiffs claimed that the Defendants in their capacities as leaders of the church purported to amend the Church’s constitution unlawfully, changed the mode of worship, misappropriated, misused and wasted the church’s funds and properties, wasted. They therefore sought orders directing the Defendants to account for their expenditure and restraining them from amending the church’s constitution unlawfully.
54.In the present case, the Petitioners, in their capacities as members and leaders of the church have sued the Respondents as the officials of the church and the registrar of societies claiming that the said church officials as a result of dereliction of their duties have led to division of the Church by conducting the Church affairs ultra-vires thereby exposing the Church to incessant wars, financial losses and imminent dissolution. According to the petitioners, by failing to comply with the provisions of the Societies Act, the Respondents have violated the Constitution. According to the Petitioners, by their conduct, the Respondents have soiled the dignity of the church and thwarted its efforts to realise its potential.
55.I have considered the facts constituting the cause of action in the various matters above as well as the present case. Whereas some parties appear I the cases either as plaintiffs, defendants, petitioners and respondents, not all the parties in the present petition are petitioners in the earlier suits. Neither can it be said that they appear in this suit in the same capacities. I am also not able to find that they are substantially the same and that the petitioners could have brought the present suit or claim in the other suits. I say so because the cause of action in this petition is clearly distinct from the other suits. Whereas there is an allusion to amendment of the Constitution of the Church, that issue even if is subject of one of the suits would not justify the termination of these proceedings since there are other issues such as the alleged mismanagement of the Church by the Respondents herein which would still remain unresolved.
56.It is contended that the issues raised herein do not meet the threshold of a constitutional petition. This being a constitutional petition, it is important to set out the parameters that determine whether a matter raises issues for determination in a constitutional petition or whether the issues ought to be dealt with as an ordinary suit.
57.Whereas every person is pursuant to the provisions of Article 3 and 22 under an obligation to respect, uphold and defend the Constitution and a right to right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened, it is my view that those provisions ought not to be abused. As was held in Karuri & others vs. Dawa Pharmaceuticals Company Limited and others [2007] 2 EA 235:“Nothing can take the courts inherent power to prevent the abuse of its process by striking out pleadings or striking out a frivolous and vexatious application. Baptising such matters constitutional cannot make them so if they are in fact plainly an abuse of the court process…A Constitutional Court must guard its jurisdiction among other things to ensure that it sticks to its constitutional mandate and that it is not abused or trivialised. There is no absolute right for it to hear everything and it must at the outset reject anything that undermines or trivialises or abuses its jurisdiction or plainly lacks a cause of action… The notion that wherever there is a failure by an organ of the Government or a public authority or public office to comply with the law necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals is fallacious. The Right to apply to the High Court under the Constitution for redress when any human right or fundamental freedom is or is likely to be contravened is an important safeguard of those rights and freedoms but its value will be diminished if it is allowed to be misused as a general substitute for the normal proceedings for invoking judicial control of administrative action. In an originating application to the High Court, the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying the normal way for the appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedoms.”
58.Therefore, it is my view and I so hold that to institute a Constitutional Petition with a view to circumventing a process by which institutions established by the Constitution, including ordinary civil courts, are to exercise their jurisdiction is an abuse of the Court process. To allow entertain such a course would lead to the Courts crippling such institutions rather than nurturing them to grow and develop.
59.It is in that light that I understand the Court’s position in John Harun Mwau v Peter Gastrow & 3 others [2014] e KLR that the Constitution only ought to be invoked when there is no other recourse for disposing of the matter and in which the Court expressed itself in the following terms:-“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration of rights…It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so.”
60.Similarly, in Uhuru Muigai Kenyatta vs. Nairobi Star Publications Limited [2013] eKLR, Lenaola, J (as he then was) held that:“Where there is a remedy in Civil Law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries (supra) where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction and as stated in AG vs S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions.”
61.Accordingly, it was held in Jeminah Wambui Ikere vs. Standard Group Ltd and Anor Petition No. 466 of 2012 that:“…each case must be looked at in its specific and unique circumstances and that the Court must determine whether there is a constitutional issue raised in the petition that ought to be addressed by the Court under Article 23(1) of the Constitution.”
62.The rationale for this was given in Rapinder Kaur Atwal vs. Manjit Singh Amrit Petition No. 236 of 2011 where it was held that:“All the authorities above, would point to the fact that the Constitution is a solemn document, and should not be a substitute for remedying emotional personal questions or mere control of excesses within administrative processes. In this case, the former must be true…I must add the following; our Bill of Rights is robust. It has been hailed as one of the best in any constitution in the world. Our courts must interpret it with all the liberalism they can marshal. However, not every pain can be addressed through the Bill of Rights and alleged violations thereof.”
63.So, in General Plastics Limited vs. Industrial Property Tribunal & another [2009] eKLR, Wendoh, J expressed herself as hereunder:“The only conclusion I can arrive at is that, it seems the Applicant is dissatisfied with the decision of the Respondent and that being so, their recourse lies in filing an appeal to the High Court under S. 115 (1) of the Industrial Property Act. In my considered view the Applicants have abused the court process by unnecessarily protracting this matter and making what is not a constitutional issue into one and in the meantime, the Applicant is benefiting from interim orders against the disputed design. The statute under which the 1stRespondent is created provides procedure for a party aggrieved by that decision, that procedure must be followed instead of camouflaging every such grievance as a constitutional issue. The court must prevent abuse of its process by disallowing such applications. (See Ben Kipeno& Others vs. AG Pet15/07 and Bahadur vs. AG (1986) LRC Const 297 where the court said;“The constitution is not a general substitute for the normal procedures for invoking judicial control of administrative action. Where infringements of rights can find a claim under substantive law, the proper cause is to bring the claim under that law and not under the Constitution.”In Speaker of National Assembly vs. Njenga Karume (1990-1994) EA 546 the Court of Appeal reiterated the above principle, that where the Constitution or A Statute provides a certain procedure to be followed, that procedure must be adhered to. In this case, failure to follow the procedure set out in the Regulations disentitles the Applicant to the Constitutional remedy sought herein. See also Harrikisson vs. AG (1979) 3 WLR 63.”
64.Further afield, in NM & others vs. Smith and others (REEDOM OF Expression Institute as Amicus Curiae) 200(5) S.A 250 (CC) the Constitutional Court of South Africa stated that:“It is important to recognise that even if a case does raise a constitutional matter, the assessment of whether the case should be heard by this Court rests instead on the additional requirements that access to this court must be in the interests of justice and not every matter will raise a constitutional issue worthy of attention.”
65.Similarly, in Minister of Home Affairs v Bickle & others (1985) LRC Cost755, Georges, CJ held as follows;“It is an established practice that where a matter can be disposed off without recourse to the Constitution, the Constitution should not be involved at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so (Wahid Munwar Khan v The State AIR (1956) Hyd.22).”
66.The judge added that:“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a Court will usually decline to determine whether there has been in addition a breach of the Declaration of Rights.”
67.Our own Supreme Court has clarified its position with regard to appeals filed in accordance with Article 163(4)(a) and in Peter Oduor Ngoge vs. Hon. Francis Ole Kaparo Petition No. 2 of 2012 in declining to hear an appeal expressed itself as hereunder:“In the petitioner’s whole argument, we think, he has not rationalised the transmutation of the issue from an ordinary subject of leave-to-appeal, to a meritorious theme involving the interpretation or application of the Constitution - such that it becomes a matter falling within the appellate jurisdiction of the Supreme Court...the guiding principle is to be that the chain of Courts in the constitutional set-up, running up to the Court of Appeal, have the professional competence, and proper safety designs, to resolve all matters turning on the technical complexity of the law; and only cardinal issues of law or of jurisprudential moment will deserve further input of the Supreme Court.”
68.Mwita, J in Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past and present customers of banking institutions in Kenya) v Habil Olaka – Executive Director (Secretary) of the Kenya Bankers Association Being sued on behalf of Kenya Bankers Association) & another [2018] eKLR held as follows:“65.It is time it became clear to both litigants and counsel that rights conferred by statute are not fundamental rights under the Bill of Rights and, therefore, a breach of such rights being a breach of an ordinary statute are redressed through a Court of law in the manner allowed by that particular statute or in an ordinary suit as provided for by procedure. It is not every failure to act in accordance with a statutory provision or where an action is taken in breach of a statutory provision that should give rise to a constitutional petition. A party should only file a constitutional petition for redress of a breach of the Constitution or denial, violation or infringement of, or threat to a rights or fundamental freedom. Any other claim should be filed in the appropriate forum and in the manner allowed by the applicable law and procedure. In that regard, it is worth remembering the warning sounded by Lord Diplock in the case of Harrikissoon V Atttorney General of Trinidad and Tobago [1980]AC 265 where he decried the tendency of people rushing to institute constitutional petitions alleging violation of fundamental freedoms where there was none stating;“The notion that wherever there is a failure by an organ of government or a public officer to comply with the law this necessarily entails the contravention of some human rights or fundamental freedoms guaranteed for individuals by...the constitution is fallacious. The right to apply to the High Court…for redress when any human right or fundamental freedom is or is likely to be contravened, is an important safeguard of those rights and freedoms; but its value will be diminished if it is allowed to be misused as a general substitute for the normal procedures for invoking judicial control of administrative action…the mere allegation that a human right of the applicant has been or is likely to be contravened is not itself sufficient to entitle the applicant to invoke the jurisdiction of the Court…if it is apparent that the allegation is frivolous, vexatious or abuse of the process of Court as being made solely for the purpose of avoiding the necessity of applying the normal way for appropriate judicial remedy for unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
69.In Benard Murage vs. Fine serve Africa Limited & 3 others [2015] eKLR the Court stated that:“Not each and every violation of the law must be raised before the High Court as a constitutional issue. Where there exists an alternative remedy through statutory law, then it is desirable that such a statutory remedy should be pursued first.”
70.That was the position adopted by Lenaola, J (as he then was) in Patrick Mbau Karanja -vs- Kenyatta University (2012) eKLR in which he expressed himself as follows in regard to when the Constitutional interpretative mandate of the Court may be invoked:-“I should only say this as I conclude; in Francis Waithaka -vs- Kenyatta University Petition No. 633 of 2011, this Court was categorical that it is imperative that the Bill of Rights and the Constitutional interpretative mandate of this Court should not be invoked where other remedies lie. Further the Court also cited with approval, the decision in Teitinnang -vs- Ariong (1987) LRC (const.) 517 where it was held as follows:-“Dealing now with the questions, can a private individual maintain an action for declaration against another private individual or individuals for breach of fundamental rights provisions of the Laws? The rights and duties of individuals, and between individual, are regulated by private laws. The Constitution, on the other hand, is an instrument of government. It contains rules about the government of the Country. It is my view, therefore that duties imposed by the Constitution under the fundamental rights provisions are owned by the government of the day, to the governed. I am of the opinion that an individual or group of individuals, as in this case, cannot owe a duty under the fundamental rights provisions to another individual so as to give rise to an action against the individual or group of individuals. Since no duty can be owed by an individual or group of individuals to another individual under the fundamental rights provisions of the Constitution no action for a declaration that there has been a breach of duty under that provision can lie or be maintained in the case before me, and I so hold.”“I maintain this position and it is important that simple matters between individuals which are of a purely Civil or Criminal nature should follow the route of Article 165 (3) (a) and be determined as such. To invoke the Bill of Rights in matters where the state is not a party would certainly dilute the sanctity of the Bill of Rights.”
71.In this petition, it is clear that the petitioners’ grievances stem from the manner in which the Church is being managed by the 1st and 2nd Respondents. Whereas several Articles of the Constitution have been cited in an attempt to embellish the allegations as constitutional issues, the truth is that the substantive issues do not require the application or interpretation of the Constitution to be resolved. Such issues as the manner in which the Church’s constitution was amended or the misappropriation of funds and mismanagement of the affairs of the Church and the consequences thereof are matters which ordinary civil courts deal with routinely on a daily basis without necessarily resorting to constitutional application and interpretation.
72.The fact that a Court may be required to cite a constitutional provision in arriving at its decision does not necessarily elevate the matter to a constitutional issue. If that were the position, ordinary civil suits would be rendered otiose as parties would elevate all their disputes to constitutional matters by simply alluding to Articles of the Constitution without necessarily linking them to the issues in dispute as the Petitioners have done in this petition. In my view, a petitioner ought to directly link his grievance to a violation of the Constitution and it does not suffice that there is a very remote connection between the alleged breach and the violation of the Constitution.
73.It is important to note that even in ordinary civil disputes, it is not difficult to find that there is some underlying constitutional principle involved. The grant or denial of an adjournment may, on occasions be traced to the right to fair trial. However, seldom do we find parties who are aggrieved by such decisions filing constitutional petitions challenging the decisions instead of lodging an appeal. Therefore, the mere fact that some underlying principle may be gleaned from the pleadings does not necessarily raise the matter to the level where it may qualify for determination as a constitutional issue.
74.In Muiruri vs. Credit Bank Ltd & another [2006] 1 KLR 385, Nyamu, J held that a constitutional issue is that which directly arises from the court’s interpretation of the Constitution; for example – what is a fair trial is a constitutional issue and the courts have interpreted what is the meaning of a fair trial. In Ngoge vs. Kaparo & 4 others [2007] 2 KLR 193, Court the expressed itself as hereunder:“We find that the making of an allegation of contravention of chapter 5 provisions per se, without particulars of the contravention and how that contravention was perpetrated would not justify the court’s intervention by way of an inquiry where the particulars of contravention and how the contravention took place are plainly lacking in the pleadings. Indeed there is a wealth of authorities on the point…Any such inclination to demand an inquiry every time there is a bare allegation of a constitutional violation would clog the Court with unmeritorious constitutional references which would in turn trivialise the constitutional jurisdiction and further erode the proper administration of justice by allowing what is plainly an abuse of the court process. Where the facts as pleaded in this case, do not plainly disclose any breach of fundamental rights or the Constitution there cannot be any basis for an inquiry… It is the view of this court that the matter was rendered academic and speculative by the dissolution and the court has no business giving declarations and orders in a vacuum. A constitutional court has no business giving orders or declarations in academic or in speculative matters… In our view, it cannot be correct to suggest that a constitutional matter cannot be dealt with in a summary manner in deserving cases. There are in fact many instances where the court must for example move first to prevent abuse of its process and to safeguard the dignity of the court. Abuse of process includes using the court process for a purpose or in a significantly different way from its ordinary and proper use. My own conception of a constitutional issue when it relates to the interpretation of a provision of Constitution is that there are posed to the court, two or more conflicting interpretation of the Constitution and the constitutional court is asked to pronounce on which is the correct one… The notion that whenever there is failure by an organ of government or a public authority or public officer to comply with the law this necessarily entails the contravention of some human right or fundamental freedom guaranteed to individuals by the chapters of the Constitution is fallacious...the mere allegation that a human right or fundamental freedom of the applicant has been or is likely to be contravened is not of itself sufficient to entitle the applicant to invoke the jurisdiction of the court under the subsection if it is apparent that the allegation is frivolous or vexatious or an abuse of the process of the court as being made solely for the purpose of avoiding the necessity of applying in the normal way for the appropriate judicial remedy for the unlawful administrative action which involves no contravention of any human right or fundamental freedom.”
75.Having considered the issues raised in this petition, it is my finding and I hold that the issues the subject of the petition may well be determined as a civil dispute without necessarily invoking this Court’s jurisdiction sitting as a constitutional court. A constitutional Court ought to deal with serious and fundamental issues and where the determination calls for a serious consideration of the Constitution and not just allegations that one’s interests have been breached or are threatened with breach.
76.I therefore find no basis upon which this Court ought to entertain these proceedings in the manner in which they were framed. In my view though the Court is perfectly entitled to entertain proceedings alleging violation of rights and fundamental freedoms even on the basis of informal documentation, such informal documentation must bring out with clarity that which is alleged to have been violated. It need not regurgitate the constitutional provisions as parties are accustomed to doing but the substance of the violation must clearly be evident. This is my understanding of the decision in Nation Media Group Limited vs. Attorney General [2007] 1 EA 261 to the effect that:“A Constitutional Court should be liberal in the manner it goes round dispensing justice. It should look at the substance rather than technicality. It should not be seen to slavishly follow technicalities as to impede the cause of justice...As long as a party is aware of the case he is to meet and no prejudice is to be caused to him by failure to cite the appropriate section of the law underpinning the application, the application ought to proceed to substantive hearing…Although the application may be vague for citing the whole of Chapter 5 of the Constitution, however the prayers sought are specific and they refer to freedom of expression guaranteed under the Constitution.”
77.In the premises, I find these proceedings incompetent for failing to satisfy the threshold of a Constitutional Petition. Consequently, this petition is struck out but with no order as to costs so as to encourage the parties to solve their spiritual disputes amicably without digressing to earthly and temporal acquisitions and achievements.
78.It is so ordered.
READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS5 TH DAY OF MAY, 2022G V ODUNGAJUDGEDelivered in the presence of:Ms Kamende for Mr Kongani for the Petitioner.Ms Kamende for the Interested PartyMr Anyona with Ms Wambui for Mr Kanjama for the 2nd, 4th and 5th RespondentsMr Mukuvi for the 3rd RespondentCA Susan
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