Bishop Josphat Mbogo v Bishop Stephen Njogu & 6 others [2019] KEELC 4527 (KLR)
The bottom line
#A Kenyan court dismissed a bishop's bid to stop rivals using church land because he had no title documents proving ownership.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved proprietary rights entitling him to a permanent injunction
The Plaintiff failed to prove ownership or any other legal basis for use of the church land and building; the suit was dismissed
The Plaintiff pleaded that he and his congregation were proprietors of the suit property, but produced no title document, certificate of search, extract of the land register or letter of allotment. He admitted the land belonged to the defunct County Council of Embu and no title had issued. Nor did he show authorisation from unnamed congregation members to sue on their behalf. Under section 107 of the Evidence Act he bore the burden of proof, which he did not discharge.
Whether the Registrar of Societies' letter of 11 September 2003 divided church assets between the factions
The letter was a temporary stop-gap measure, not a division of assets, and the Registrar had no power under the Societies Act to order an arbitrary division of assets by letter
The Registrar of Societies had advised the warring factions to retain assets under their respective control. The court held that this was at most a temporary measure pending a formal division process, and that no statutory power under the Societies Act (Cap 108) entitled the Registrar to divide assets through such a letter. It therefore did not establish the Plaintiff's entitlement.
Who should bear the costs of the suit
Although costs normally follow the event, each party was ordered to bear his own costs because the ownership confusion from the church split was not of their making
Section 27 of the Civil Procedure Act and the Hussein Janmohamed principle establish that a successful party should ordinarily receive costs. The court departed from this rule, reasoning that the confusion over property ownership arising from the splitting of the church into two factions was not of the parties' own making, so neither side deserved to be penalised on costs.
Legal principles established
#- A party seeking a permanent injunction must demonstrate violation of proven legal or proprietary rights
- A bare statement of ownership of landed property cannot suffice to demonstrate ownership; proprietary rights must be shown through documentary evidence
- The Registrar of Societies has no power to order an arbitrary division of assets through a letter under the Societies Act
- Costs follow the event unless the court for good reason directs otherwise
Court orders
#- 1.The Plaintiff's suit is dismissed
- 2.Each party shall bear his own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over dispute concerning church land and buildings (suit transferred from Kerugoya ELC to Embu ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bishop Josphat Mbogo v Bishop Stephen Njogu & 6 others [2019] KEELC 4527 (KLR)", Case Analysis (2019). E.L.C. No. 86 of 2016 (formerly Kerugoya ELC No. 432 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4527/eng@2019-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.