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Court of AppealDismissedCivil Appeal (from Gachuhi J's ruling of June 23, 1981, High Court)

Arthur Gatungu Gathuna v African Orthodox Church of Kenya [1982] KECA 16 (KLR)

Court of Appeal of Kenya
2 September 1982
LALawMIMillerKNKneller
3,326 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The respondent, the African Orthodox Church of Kenya, a registered society, sued the appellant, its purportedly deposed Assistant Bishop of Nitria, seeking a declaration that he was no longer a member, injunctions restraining him from interfering with its affairs and from claiming to be a bishop, and other reliefs. The suit relied on a 'Legal Judgment No 1' of the Holy Synod of the Greek Orthodox Patriarchate of Alexandria dated November 30, 1979, purporting to depose and unfrock him. The respondent's interlocutory application for injunctions came before Gachuhi J, who dismissed the appellant's preliminary objection on June 23, 1981, holding the court had jurisdiction and that the Holy Synod's judgment was enforceable in Kenya as a foreign judgment. The appellant appealed. The Court of Appeal (Law, Miller and Kneller JJA) unanimously affirmed the High Court's jurisdiction, holding that the litigation concerned a dispute within a society registered under the Societies Act (Cap 108), and that matters of mixed spiritual and temporal character affecting legal rights are justiciable, though there is no ecclesiastical law or established church in Kenya. However, the court set aside the judge's holding that the Holy Synod's judgment was enforceable as a foreign judgment under the Foreign Judgments Enforcement Act (Cap 43), the Synod not being a foreign court, though its judgment may be relevant as evidence of the appellant's status. The appeal was dismissed with no order as to costs, each party bearing its own, and the suit was left to proceed to trial before Gachuhi J on properly framed agreed issues, with High Court costs in the trial judge's discretion.

Key legal issues

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01

Jurisdiction of the High Court over church/society disputes

Holding

The High Court has jurisdiction; the litigation is a dispute within a society registered under the Societies Act (Cap 108), not strictly a matter of ecclesiastical law, and there is no established church or ecclesiastical law in Kenya.

Reasoning

The court distinguished between spiritual matters, which may not be justiciable, and matters of mixed spiritual and temporal character affecting legal rights such as property and contract, which are justiciable. A registered society suing its member falls squarely within the courts' jurisdiction, and admissions of jurisdiction in pleadings do not oust the court's duty to satisfy itself on jurisdiction.

p. 2
02

Enforceability of the Holy Synod's judgment as a foreign judgment

Holding

The judgment of the Holy Synod in Alexandria is not a foreign judgment within Section 2 of the Civil Procedure Act or the Foreign Judgments Enforcement Act (Cap 43), and the Holy Synod is not a foreign court; the ruling of Gachuhi J to that effect was set aside.

Reasoning

The court held that although the judge was right on jurisdiction, he erred in treating the Synod's judgment as enforceable in Kenya as a foreign judgment. Such a judgment may nonetheless be relevant as evidence of the appellant's status within the society, and the lawfulness of the tribunal's pronouncement would be one of many issues at trial.

p. 2
03

Justiciability and declaratory relief

Holding

The dispute is justiciable, involving rights to property, and declaratory relief is unobjectionable where the questions are real, the parties have real interest and there is a proper contradictor.

Reasoning

Applying Lord Dunedin's formulation in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd and Simpson J in Matalinga v Attorney General, the court found the questions real and not theoretical, both parties having a real interest and the defendant a true interest in opposing the declaration sought.

p. 4

Legal principles established

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  • A suit by a registered society, in its capacity as such, against one of its members is within the jurisdiction of the Kenya courts.
  • A judgment of a church tribunal such as the Holy Synod of the Patriarchate of Alexandria is not a foreign judgment enforceable under the Foreign Judgments Enforcement Act (Cap 43), though it may be relevant as evidence of a party's status.
  • A court is duty-bound to raise and consider questions of its own jurisdiction even where the parties admit jurisdiction in the pleadings.
  • Matters of mixed spiritual and temporal character with temporal consequences affecting legal rights fall within the High Court's jurisdiction, though the court may in its discretion decline to entertain such an action.
  • Kenyan courts have never held they lack jurisdiction over disputes within churches with their own constitutions and tribunals; they have simply declined to interfere with decisions of properly constituted tribunals.

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs
  3. 3.Suit to proceed to trial on properly and comprehensively framed agreed issues now that the issue of jurisdiction has been settled
  4. 4.Costs of the proceedings in the High Court to be in the discretion of the trial Judge
  5. 5.No order that the trial be heard before another judge
On appeal from
High Court of Kenya
Jurisdiction invoked
Unlimited original civil jurisdiction of the High Court under Section 60 of The Constitution of Kenya; appellate jurisdiction of the Court of Appeal over an interlocutory appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Arthur Gatungu Gathuna v African Orthodox Church of Kenya [1982] KECA 16 (KLR)", Case Analysis (1982). Civil Appeal (from Gachuhi J's ruling of June 23, 1981, High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1982/16/eng@1982-09-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.