Moses Muturi & 6 others v Silas Yego & 3 others [2016] KEELC 751 (KLR)
The bottom line
#A Kenyan court refused to undo a 2010 church land settlement, confirming that church officials can sue, be sued, and bind their churches to consent orders.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Defendants' application, not originally supported by an affidavit, was defective
- 2.Whether the suit against the 2nd and 3rd Defendants had abated by reason of their alleged death
- 3.Whether the Plaintiffs had locus standi to institute the suit
- 4.Whether the Defendants, sued as officials of AIC - Kenya, had capacity to enter into the consent order
- 5.Whether the consent order dated 3rd December 2010 ought to be set aside and/or discharged
Key legal issues
#Locus standi of the Plaintiffs
The Plaintiffs, described in the Plaint as officials of AIC Westlands, a local church within AIC Kenya with a Local Church Council under the AIC Kenya By-laws (2013), have locus to bring the suit on behalf of the local church
The court perused the Plaint filed on 24th November 2010 and found the Plaintiffs had clearly stated the capacity in which they sued and the capacity in which the Defendants were sued. The AIC Kenya By-laws (2013), Chapter II, establish Local Church Councils of 3 to 15 elected elders chaired by the Pastor. On this basis the court was satisfied the Plaintiffs, as officials of the local church, had the necessary standing.
Capacity of the Defendants to enter into the consent
The Defendants, sued as officials of AIC - Kenya, had capacity to enter into the consent; the argument that only the Board of Trustees could deal with property failed, particularly as the 1st Defendant chairs the Board of Trustees meetings
Having found the Defendants were sued as officials of AIC - Kenya and not in their individual capacities, the court examined the AIC Kenya By-laws (2013), Chapter VIII establishing the Board of Trustees and Chapter VI establishing the Office of Presiding Bishop, which chairs Board of Trustees meetings. The court rejected the contention that the Defendants lacked capacity to enter the consent, noting the 1st Defendant chairs Board of Trustees meetings.
Alleged abatement of the suit against the 2nd and 3rd Defendants
The claim of death was unsupported by any certificate of death and, in any event, Order 24 of the Civil Procedure Rules provides for the death of a party during a suit
The Defendants asserted that the 2nd and 3rd Defendants had died and the suit against them abated, but produced no certificate of death, so the court could not ascertain the alleged deaths. The court further held that even if they were deceased, Order 24 of the Civil Procedure Rules contemplates death of a party during the pendency of a suit and makes appropriate provisions, so the suit did not simply abate.
Whether the notice of motion required a supporting affidavit
While an application of this nature ought to have been supported by an affidavit, the defect was cured by the Defendants' Further Affidavit elaborating the grounds
The Plaintiffs argued the application was defective for want of a supporting affidavit; the Defendants invoked Order 51. The court noted the correct provision is Order 51 Rule 4, which requires service of any affidavit intended to be used where a motion is grounded on evidence, and observed that applications raising points of law need not be supported by affidavit. The court considered an affidavit ought to have been filed but noted the Further Affidavit cured the omission.
Legal principles established
#- A society not being a legal person cannot sue or be sued in its own name; it must sue or be sued through named officials, and titles such as Chairman, Secretary or Treasurer do not suffice
- Not all applications require a supporting affidavit, particularly those raising points of law; but a notice of motion grounded on evidence must have the intended affidavit served
- Order 24 of the Civil Procedure Rules makes provision for the death of a party during the pendency of a suit
Court orders
#- 1.The Defendants' application dated 24th October 2014 seeking to set aside the consent order filed on 3rd December 2010 is dismissed
- 2.Costs of the application awarded to the Plaintiffs/Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over a suit concerning church property; application under the Civil Procedure Rules (Order 51 and Order 24) to set aside a consent order
Relief refused
#Setting aside and/or discharge of the consent order dated and filed on 3rd December 2010
The court found the Defendants were sued as officials of AIC - Kenya with capacity to enter the consent, and the Plaintiffs had locus to sue; the application lacked merit
Costs
Application dismissed with costs to the Plaintiffs/Respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I am satisfied that the Plaintiffs have locus to bring the suit on behalf of the Plaintiff, local church.
This Court, having found that the Defendants have been sued as officials of AIC – Kenya, rejects the argument that the Defendants had no capacity to enter into the consent particularly in view of the fact that the 1st Defendant chairs the Board Trustees meetings.
On the foregoing therefore, I find that the application lacks merit and I hereby dismiss the same with costs to the Plaintiffs/Respondents.
It is thus evident that not all applications require an affidavit particularly those that raise points of law.
Even if they are indeed deceased, Order 24 of the Civil Procedure Rules contemplates the death of a party during the pendency of a suit and makes appropriate provisions.
Issues in the judgment
#The court name, station and case number of the suit are not stated in the judgment extract; the court has been inferred from the subject matter (land dispute over L.R. No. 7158/9)
The judgment extract is a ruling on an application but does not reproduce the case title or suit number in the coram
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Moses Muturi & 6 others v Silas Yego & 3 others [2016] KEELC 751 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/751/eng@2016-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.