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ELCPartially AllowedELC Case No. 1216 of 2014· [2016] KEELC 742 (KLR)

Registered Trustees of the African Independent Pentecostal Church of Africa v Arch Bishop Amos Mathenge Kabuthu & another [2016] KEELC 742 (KLR)

High Court of Kenya, Environment and Land Division
29 April 2016
5,347 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Kenyan church leadership fight stalled in court because the side suing couldn't prove it truly spoke for the church, and interim protections were lifted.

What this practically means

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Executive summary

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This ruling of the Environment and Land Division of the High Court at Milimani, delivered by L. Gacheru J on 29 April 2016, determines two interlocutory Notices of Motion. The plaintiff, the Registered Trustees of the African Independent Pentecostal Church of Africa (AIPCA), acting through trustees Simon Peter Mwangi and Paul Watoro Gichu, sought orders pending trial directing the 1st defendant, Archbishop Amos Mathenge Kabuthu, to deposit the church's corporate seal and title documents in court, an injunction restraining dealings with church properties including LR NRB Block 126/368, and an inhibition against the Chief Land Registrar. The plaintiff alleged the Archbishop had suspended the Nairobi Archdiocese committee, appointed commissioners ultra vires the Church Constitution, and seized title deeds and the seal. The 1st defendant opposed, contending the suit was filed by imposters since Mwangi and Gichu were removed as trustees and excommunicated on 12th May 2014. A separate application by six persons claiming to be the new bonafide trustees sought joinder as interested parties. The court first allowed the joinder application, holding the applicants were necessary parties to resolve the question of who the bonafide trustees are, and directed the plaintiff to amend its pleadings. On the injunction application, applying the Giella v Cassman Brown principles, the court found the applicants' capacity to sue uncertain and hence no prima facie case; no irreparable injury was shown, and the balance of convenience favoured maintaining the status quo prevailing before suit, there being no evidence of immediate danger to property. The court vacated the restraining orders, dismissed the Notice of Motion dated 12th September 2014 entirely with costs in the cause, and directed the parties to set the main suit down for hearing expeditiously.

Key legal issues

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01

Joinder of interested parties

Holding

The persons named by the 1st defendant as the bonafide trustees are necessary parties whose presence will assist the court to adjudicate the dispute completely

Reasoning

The central question is who are the bonafide trustees of AIPCA. Since the 1st defendant named the applicants as the bonafide trustees and they claim an interest in the outcome, the court's discretion under Order 1 Rule 10(2) and its inherent power under Section 3A of the Civil Procedure Act justified joining them so all questions can be settled.

p. 7
02

Prima facie case for injunction

Holding

The applicants failed to establish a prima facie case because their capacity to sue on behalf of AIPCA is uncertain

Reasoning

The suit was anchored on the affidavit of Simon Peter Mwangi, but the 1st defendant produced documents showing Mwangi and Paul Watoro Gichu were removed as trustees and excommunicated on 12th May 2014. Those allegations are disputed and are matters for trial evidence; the court could not hold with certainty that they are bonafide trustees with capacity to sue.

p. 9
03

Irreparable injury

Holding

Given the uncertainty as to capacity, the court could not ascertain any irreparable loss

Reasoning

Since it is uncertain whether the deponent and Paul Watoro Gichu have capacity to sue, it follows that the court cannot determine whether they would suffer loss incapable of compensation by damages. The second Giella limb was therefore not satisfied.

p. 9
04

Balance of convenience

Holding

The balance of convenience tilts in favour of maintaining the status quo that prevailed before the suit was filed

Reasoning

The core dispute is leadership wrangles between alleged trustees, not members. No key church members complained of danger of disposal of the properties, and there was no evidence of immediate danger to property. The status quo before suit meant no restraining orders were in force, so the existing restraining orders were vacated.

p. 9

Legal principles established

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  • A party's presence in a suit may be ordered where necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved
  • Injunctive relief is an equitable remedy granted at the court's discretion, to be exercised judicially
  • Temporary injunctions require evidence of immediate danger to property and their purpose is to preserve the status quo

Court orders

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  1. 1.The Notice of Motion dated 27th February 2015 is allowed and the applicants therein (Stanley Mburu Mwangi, Timothy Gitonga Gachaya, Samuel Mburu Kimani, Eliud Njua Juma, John Maina and Philip Kubai) are enjoined as Defendants in the suit
  2. 2.The Plaintiff to amend its pleadings accordingly to reflect the enjoined Defendants
  3. 3.The Court vacates the restraining orders in force
  4. 4.The Notice of Motion dated 12th September 2014 is dismissed entirely with costs being in the cause
  5. 5.The parties to set the main suit down for hearing expeditiously so that the underlying issues can be resolved with finality

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 1 Rule 25
  • Civil Procedure ActSection 3A

Cases cited (7)

  • Free Pentescostal Fellowship In Kenya Vs Kenya Commercial Bank Limited
    NRB HCCC 5116 of 1992 (OS)
  • Giella Vs Casman Brown & Co. Ltd
    1973 EA 358
  • Films Rovers Internationals
    (1986) 3 ALL ER 722
  • CMC Motors Group Ltd and Another vs. Evans Kangeche Boro
    Civil Appeal No. 295 of 2007
  • East Africa Development Vs Hyudai Motors Kenya Ltd
    Civil Appeal No. 194 of 2004 (2004) LLR 6121
  • Mrao Ltd Vs First American Bank of Kenya and 2 Others
    (2003) KLR 125
  • Noor Mohammed Jan Mohammed Vs Kassamali VN
    (1953) EA 8
Jurisdiction invoked
Order 1 Rule 10(2) and 25 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act

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, "Registered Trustees of the African Independent Pentecostal Church of Africa v Arch Bishop Amos Mathenge Kabuthu & another [2016] KEELC 742 (KLR)", Case Analysis (2016). ELC Case No. 1216 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/742/eng@2016-04-29

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