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ELCDismissedE.L.C. No. 86 of 2016 (formerly Kerugoya ELC No. 432 of 2013)· [2019] KEELC 4527 (KLR)

Bishop Josphat Mbogo v Bishop Stephen Njogu & 6 others [2019] KEELC 4527 (KLR)

Environment and Land Court of Kenya at Embu
21 February 2019
1,666 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 dismissed a bishop's bid to stop rivals using church land because he had no title documents proving ownership.

What this practically means

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Executive summary

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The Plaintiff, describing himself as Bishop of the Africa Independent Pentecostal Church of Kenya (AIPCK), sued officials of the rival African Independent Pentecostal Church of Africa (AIPCA) faction seeking a permanent injunction restraining them from interfering with church buildings and plots at Kathangari, alleging the Defendants invaded the church and disrupted worship on 10th and 17th January 2010. The Defendants entered appearance but filed no defence and adduced no evidence. The court, applying Order 15 Rule 2 of the Civil Procedure Rules, framed its own issues since the parties filed no agreed issues: entitlement to the permanent injunction and costs. The court held that an injunction must rest on violation of proven proprietary rights, and that such rights are demonstrated through documentary evidence. The Plaintiff produced no title document, search, extract of the land register or letter of allotment, admitted the land belonged to the defunct County Council of Embu with no title issued, and failed to show authorisation from the unnamed congregation members he purported to represent. The court also held that the Registrar of Societies' letter of 11th September 2003 directing the factions to retain assets under their control was only a stop-gap measure, the Registrar having no power under the Societies Act to divide assets by letter. The suit was dismissed with each party bearing their own costs, the court departing from the normal costs rule because the confusion from the church split was not of the parties' making.

Key legal issues

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01

Whether the Plaintiff proved proprietary rights entitling him to a permanent injunction

Holding

The Plaintiff failed to prove ownership or any other legal basis for use of the church land and building; the suit was dismissed

Reasoning

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.

p. 3
02

Whether the Registrar of Societies' letter of 11 September 2003 divided church assets between the factions

Holding

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

Reasoning

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.

p. 3
03

Who should bear the costs of the suit

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Plaintiff's suit is dismissed
  2. 2.Each party shall bear his own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 15 Rule 2
  • Evidence Act (Cap 80)section 107
  • Societies Act (Cap 108)general
  • Civil Procedure Act (Cap 21)section 27

Cases cited (1)

  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
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

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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, "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.