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ELCPartially AllowedHCCA No. 96 of 2008 & Civil Appeal No. 111 of 2008 (Consolidated)· [2017] KEELC 572 (KLR)

Living Waters E.A.P.C (suing thro’ his registered Officials Viz Andrew Nyaga & another v East Africa Pentecostal Church (suing through its registeredTrustees Viz Justus Kinoti Ringera & 2 others [2017] KEELC 572 (KLR)

Environment and Land Court
7 December 2017
2,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed the parent church's ownership of disputed properties and its injunction, but allowed part of the breakaway church's earlier appeal on procedural fairness grounds.

What this practically means

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Executive summary

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This is a consolidated first appeal from the Meru magistrates' courts concerning two church-related disputes between the East Africa Pentecostal Church and Living Waters EAPC, which broke away from it. In CMCC No. 727 of 2004 the trial magistrate (Hon. Khadambi SRM) granted a permanent injunction restraining the defendant from interfering with properties described as Makutano, Themba, Chugu, Kithoka, Kienderu and others, but dismissed the claim for general damages, with costs to the plaintiff. The defendant appealed (HCCA No. 96 of 2008), arguing misjoinder and misdescription of parties, that the wrong parties (officials rather than trustees) sued, and that ownership of the properties was not proved. In CMCC No. 428 of 2002 Hon. Njeru Ithiga SPM had refused an interlocutory injunction against the breakaway group, prompting an appeal. Applying Peters v Sunday Post, the court reviewed the evidence with caution. It found the trial magistrate properly saved the suit under Order 1 Rule 1 of the Civil Procedure Rules and correctly found most properties registered in the respondent's name, while plots reserved for religious purposes belonged to the County Government; nevertheless the respondent had equitable interests warranting the injunction. Appeal No. 96 of 2008 was accordingly dismissed with costs. However, in the appeal against the ruling of Hon. Ithiga, the court held the ruling was not informed by the pleadings or law: the appellant had shown a prima facie case with a high chance of success and potential irreparable injury. That appeal was allowed with each party bearing their own costs.

Key legal issues

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01

Effect of misjoinder/misdescription of parties

Holding

The suit was properly saved from incompetence; Order 1 Rule 1 of the Civil Procedure Rules saves a suit from being incompetent by reason of misjoinder or misdescription

Reasoning

The trial magistrate quoted Order 1 Rule 1 of the Civil Procedure Rules in saving the suit. The court held she properly directed herself to the law on this ground of appeal, so the challenge to capacity and misdescription failed.

p. 5
02

Ownership of the suit properties and entitlement to injunction

Holding

The trial magistrate's findings on ownership were supported by the evidence (green cards, certificates of search) and the injunction was properly granted on the Giella principles

Reasoning

PW1 produced green cards and searches showing the properties registered in favour of the Plaintiff. Plots reserved for religious purposes belonged to the County Government but the Plaintiff demonstrated an interest capable of protection by equity. The magistrate properly applied the Giella v Cassman Brown principles for injunctions.

p. 5
03

Refusal of interlocutory injunction in CMCC No. 428 of 2002

Holding

The ruling refusing the injunction was not informed by the pleadings and applicable law; the appellant had demonstrated a prima facie case with a high chance of success and irreparable injury

Reasoning

The appellant deponed to the constitution of the society providing dispute-resolution mechanisms which the respondent had breached; those averments were not controverted. Hence the appeal against that ruling succeeded.

p. 5

Legal principles established

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  • An appellate court reviews the evidence of a first-instance decision with caution, intervening only where there is no evidence to support the conclusion or the trial judge plainly went wrong

Court orders

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  1. 1.Appeal in Civil Appeal No. 111 of 2004/2008 allowed with each party bearing their own costs
  2. 2.Each party to bear their own costs of the application dated 14/08/2002
  3. 3.Civil Appeal No. 89 of 2002 dismissed with costs to the Respondent
  4. 4.Permanent injunction granted by the trial magistrate restraining the Defendant from interfering with the Plaintiffs properties (LR Nos. 1713, 2885, 2267, 576, 461 and 250) left undisturbed

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 1
  • Societies Act
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Peters -vs- Sunday Post Limited
    [1958] EA at page 424
  • Giella -vs- Cassman Brown Ltd
    (1973) EA 358 (referred to as 1958 EA)
On appeal from
Chief Magistrate's Court, Meru
CMCC No. 428 of 2002 (Ruling of Hon. Njeru Ithiga SPM, 13/08/2002) and CMCC No. 727 of 2004 (Judgment of Hon. M.S.G. Khadambi SRM, 02/10/2008)
Jurisdiction invoked
Appellate jurisdiction over appeals from the Subordinate Courts (first appellate jurisdiction over magistrates' courts)

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, "Living Waters E.A.P.C (suing thro’ his registered Officials Viz Andrew Nyaga & another v East Africa Pentecostal Church (suing through its registeredTrustees Viz Justus Kinoti Ringera & 2 others [2017] KEELC 572 (KLR)", Case Analysis (2017). HCCA No. 96 of 2008 & Civil Appeal No. 111 of 2008 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/572/eng@2017-12-07

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