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Court of AppealDismissedCivil Appeal (Nyeri)· [2015] KECA 304 (KLR)

Muthinja & another v Henry & 1756 others (Civil Appeal 10 of 2015) [2015] KECA 304 (KLR)

Court of Appeal of Kenya
28 October 2015
PWP. N. WakiRNR. N. NambuyePKP. O. Kiage
4,954 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that Kenyan church members must first use their church's internal dispute processes before running to court, though courts never lose ultimate jurisdiction.

What this practically means

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Executive summary

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This is a first appeal to the Court of Appeal at Nyeri against a judgment of Makau J of the High Court at Meru, who had allowed a constitutional petition brought by trustees and some 1,750 members of the East Africa Pentecostal Church. The High Court found that a dozen suits filed by members following the contested 19th August 2010 church elections violated Article 32 (freedom of worship), struck out all but two of them, and directed aggrieved parties to first use the Church's internal dispute resolution mechanisms under Article 21 of the Church's Constitution. The appellants, church officials whose allies had filed the struck-out suits, argued the suits raised justiciable issues, that the referral to church organs limited their right to a fair trial under Article 50, and that the petition failed the Anarita Karimi particularity threshold. The Court of Appeal framed three issues: competency of the petition, justiciability, and whether Article 21 oust-ed the courts' jurisdiction. It upheld the petition's competency, held that the disputes were in fact justiciable (criticising the Judge for conflating justiciability with jurisdiction), but affirmed that the exhaustion doctrine required plaintiffs to first exhaust the Church's internal mechanisms before approaching the courts. Article 21 did not oust jurisdiction but merely postponed the courts' entry point. The appeal was dismissed with no order as to costs. This ruling binds subordinate courts and the High Court on the exhaustion doctrine in church and voluntary-organisation disputes.

Key legal issues

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01

Competency of the constitutional petition

Holding

The Petition met the Anarita Karimi threshold of particularity and, following the removal of locus standi strictures by Article 22, was properly brought by the church trustees.

Reasoning

The court held that a petitioner must be specific as to the right violated and give particulars, as required by Anarita Karimi Njeru and Mumo Matemu and reflected in Rule 10(2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. On perusal, the petition identified Article 32, the manner of breach, and the injury. Given the rights-centric dispensation, substance should not be defeated at the altar of procedure.

p. 6
02

Justiciability of the disputes in the various suits

Holding

The disputes were justiciable; the learned Judge erred in conflating justiciability with jurisdiction and finding the matters non-justiciable while simultaneously referring them to church organs with liberty to return to court.

Reasoning

The court found the Judge had properly defined justiciability at the start of paragraph 77 but then confused it with jurisdiction. Since the Judge himself had found that courts cannot shut their eyes where legal rights or Bill of Rights matters are in issue, and since his referral order presupposed future court access, the claims were justiciable. The proper analysis was prematurity, not non-justiciability.

p. 8
03

Whether Article 21 of the Church's Constitution ousted the courts' jurisdiction

Holding

Article 21 did not oust jurisdiction; it merely postponed the courts' entry point, and the exhaustion doctrine required plaintiffs to first utilise the church's internal dispute resolution mechanisms.

Reasoning

The Church had an elaborate hierarchical dispute resolution system which plaintiffs ought to have exhausted before litigating. The exhaustion doctrine ensures diligent pursuit of internal remedies and accords with Article 159's command to encourage alternative dispute resolution. It applies even where the authority of the internal organs is challenged, since safeguards existed and courts remained available after exhaustion.

p. 9

Legal principles established

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  • Where a dispute resolution mechanism exists outside the courts, it must be exhausted before the jurisdiction of the courts is invoked; courts are fora of last resort, and the exhaustion doctrine applies even where the validity of the internal organs themselves is challenged.
  • Clauses in voluntary organisations' constitutions requiring internal dispute resolution do not oust the courts' jurisdiction; they merely postpone the courts' entry point, and courts retain jurisdiction over matters of legal and constitutional rights even within churches.
  • Courts have jurisdiction over church disputes of a temporal or mixed spiritual and temporal character notwithstanding internal church tribunals.
  • A constitutional petition is competent if it specifies with sufficient particularity the constitutional provision violated, the facts relied upon, the nature of injury, and the relief sought; with locus standi strictures removed by Article 22, an organisation such as a church may petition in the interest of its members.

Court orders

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  1. 1.The appeal against the judgment and decree of the High Court is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 32
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159
  • Constitution of Kenya, 2010Article 165
  • Constitution of Kenya, 2010Article 21
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 10(2)
  • Court of Appeal RulesRule 29(1)
  • East Africa Pentecostal Church ConstitutionArticle 21

Cases cited (9)

  • Anarita Karimi Njeru v Attorney General (No. 1)
    1979 I KLR 154
  • Forbes v Eden
    [1867] L.R 1.S.C. & DIV.AC 568
  • Mbugua v Olang
    [1979] e KLR
  • Arthur Gatungu Gathuna v African Orthodox Church Of Kenya
    [1982] e KLR
  • Dt Dobie & Company (Kenya) Ltd v Joseph Mbacia Muchina & Anor
    [1980] e KLR
  • Judges & Magistrates Vetting Board & 2 Others v Centre For Human Rights & Democracy & 11 Others
    [2014] e KLR
  • Mumo Matemu v Trusted Society Of Human Rights Alliance & 5 Others
    [2013] e KLR
  • Fertilizer Corporation Kamgar Union v Union Of India
    [1981] SC 344 (AIR)
  • Peter Muiruri Kabiru & 2 Others v Paul Wandati Kabue
    HCCC No. 319 of 2009 (Milimani)
On appeal from
High Court of Kenya at Meru
Jurisdiction invoked
First appeal under Rule 29(1) of the Court of Appeal Rules; constitutional petition decided by the High Court under Articles 22 and 32 of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Muthinja & another v Henry & 1756 others (Civil Appeal 10 of 2015) [2015] KECA 304 (KLR)", Case Analysis (2015). Civil Appeal (Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/304/eng@2015-10-30

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