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ELCDismissedKitale ELC (unnumbered on judgment)· [2015] KEELC 93 (KLR)

Josephat Ogole Elegwa & 4 others v Bernard Ayeka & 3 others [2015] KEELC 93 (KLR)

Environment and Land Court
27 October 2015
1,029 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court's Environment and Land Court in Kitale dismissed a church faction's attempt to force rival trustees to hand over a title deed they never had.

What this practically means

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Executive summary

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The five plaintiffs, describing themselves as the current registered trustees of Kitale Pentecostal Church (KPC), sued the defendants, also registered trustees of KPC, seeking an order compelling them to surrender the certificate of lease for Title No. Kitale Municipality Block 3/11, which remains registered in the defendants' names as trustees. The plaintiffs, through Michael Wamalwa Nalwelisie, testified that KPC was registered under the Societies Act on 15/5/2012, that it was not an affiliate of Pentecostal Assemblies of God Kenya (PAG(K)), that the first defendant had resigned as pastor, and that on resigning he handed over all KPC properties except the certificate of lease. The defendants, through the first defendant and Reverend Patrick Lihanda of PAG(K) headquarters at Nyangori, testified that KPC is an affiliate of PAG(K), one of ten pentecostal churches created under PAG(K)'s umbrella, and that under PAG(K)'s constitution all property documents of affiliated churches are kept at Nyangori, including the title in issue. The court framed three issues: whether KPC is an affiliate of PAG(K); whether the defendants hold the title and can be compelled to surrender it; and who the lawful recognized trustees of KPC are. The court found that KPC remains an affiliate of PAG(K), that the certificate of title is kept at Nyangori and not by the defendants, who therefore cannot be compelled to surrender what they do not have, and that the recognized trustees are the defendants, there being no evidence they were lawfully replaced with the sanction of PAG(K). The plaintiffs having failed to prove their case, the suit was dismissed with costs to the defendants.

Key legal issues

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01

Whether Kitale Pentecostal Church is an affiliate of Pentecostal Assemblies of God Kenya (PAGK)

Holding

KPC is still an affiliate of PAG(K); there was no evidence that KPC broke from the parent church or became independent.

Reasoning

The letter of allotment was made to PAG(K), which directed that the property be registered in the name of KPC because KPC was a church under PAG(K)'s umbrella. The letter authorising the Commissioner of Lands to process title in KPC's name was written by PAG(K) itself. There was no evidence of any breakaway or independence of KPC from the parent church.

p. 2
02

Whether the defendants could be compelled to surrender the certificate of title

Holding

The defendants cannot be compelled to surrender the title because they do not have it; it is kept at PAG(K) headquarters at Nyangori in accordance with PAG(K)'s constitution.

Reasoning

DW2 from PAG(K) headquarters confirmed the title to KPC property is kept at Nyangori, consistent with PAG(K)'s constitution requiring property documents of affiliated churches to be kept at headquarters. Since the defendants do not hold the certificate of lease, an order to surrender it against them would be futile.

p. 2
03

Who are the lawful recognized trustees of KPC

Holding

The recognized trustees of KPC are the four defendants, as recognized by PAG(K); no evidence showed they were lawfully replaced.

Reasoning

KPC was formally registered on 15/5/2012 and the trust deed was registered on 3/6/2013. There was no evidence that the initial trustees were replaced with the sanction of PAG(K), the parent church. DW2 from headquarters confirmed the trustees known to PAG(K) are the defendants. The plaintiffs therefore failed to establish themselves as lawful trustees entitled to the title.

p. 3

Legal principles established

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  • A party cannot be compelled to surrender a document which they do not possess
  • He who alleges must prove; a party claiming relief must prove their case on the evidence

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Costs of the suit awarded to the defendants

Authorities

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Legislation

  • Societies Actnot specified
Jurisdiction invoked
Environment and Land Court jurisdiction over title to land (statutory first-instance jurisdiction; no specific provision invoked in the judgment)

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, "Josephat Ogole Elegwa & 4 others v Bernard Ayeka & 3 others [2015] KEELC 93 (KLR)", Case Analysis (2015). Kitale ELC (unnumbered on judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/93/eng@2015-10-27

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