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ELCAllowedNot stated in the judgment (application dated 20th February, 2019 filed together with the plaint)· [2020] KEELC 1123 (KLR)

Johnson Mwangera Njoki & 8 others v Wellington Sanga & 13 others [2020] KEELC 1123 (KLR)

Environment and Land Court
16 September 2020
CYC K Yano
2,603 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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A Mombasa court stopped a breakaway church group from taking over Methodist Church properties, ruling the registered trustees control the land until trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C K Yano, J) determined an interlocutory application for a temporary injunction dated 20th February, 2019, filed by the plaintiff, the registered trustees of the Methodist Church in Kenya, together with its plaint. The plaintiff claimed to be the registered proprietor of numerous suit properties in the coastal region, held through trustees registered on 14th July, 2017, and alleged that the defendants formed a splinter group, the Methodist Church in Kenya Coast Region Methodist Conference, and trespassed upon, repainted and took possession of the plaintiff's churches. It sought vacant possession and a permanent injunction, and interim injunctive relief. The defendants opposed, denying the existence of the trust and the plaintiff's locus standi, asserting that the local churches bought or were donated the land, built and managed the churches themselves, and that the trustees hold the properties only for their benefit as beneficiaries; they invoked freedom of association and worship under the Constitution. The court framed two issues: the 1st respondent's authority to swear the replying affidavit for the others, and whether a temporary injunction should issue. Relying on Article 159(2)(d), the court declined to be detained by the authority objection. Applying Giella v Cassman Brown and Mrao v American Bank, it found the registered trust empowered the trustees to hold land, that the defendants displayed no contrary ownership instrument, and that the plaintiff had therefore established a prima facie case with a probability of success, irreparable loss, and a balance of convenience favouring the status quo. The application dated 20th February, 2019 was allowed in terms of prayers 3, 4 and 5, with the defendants to be heard at trial on ownership.

Key legal issues

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01

Whether a replying affidavit sworn without written authority on behalf of co-respondents vitiates the defence to the application

Holding

The court proceeded to determine the application on all affidavits on record, holding that any decision would affect all respondents regardless.

Reasoning

Counsel for the applicant conceded the replying affidavit would stand only for the 1st respondent, but the court reasoned that whichever way it decided, the decision would affect all respondents. Guided by Article 159(2)(d) of the Constitution, justice is to be administered without undue regard to procedural technicalities, so the application was determined on the affidavits on record including the 1st respondent's.

p. 4
02

Whether the plaintiff established a prima facie case with a probability of success warranting a temporary injunction

Holding

The plaintiff established a prima facie case with a probability of success; irreparable loss and the balance of convenience also favoured maintaining the status quo pending trial.

Reasoning

The court found the trust of 14th July, 2017 duly registered, appointing trustees empowered to hold land and interests therein. The defendants produced no instrument bestowing ownership of the properties on them or the local churches. The defendants' re-painting and re-naming of the properties manifested an intention to wrestle possession without due process. The balance of convenience tilted toward maintaining the status quo until the suit was heard and determined.

p. 4

Legal principles established

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  • Until vitiating factors are proved, the court presumes that an entity whose trustees are duly registered is the custodian of its properties.
  • A party claiming ownership of properties contrary to a registered trust instrument must display a contrary instrument bestowing ownership.

Court orders

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  1. 1.The application dated 20th February, 2019 allowed in terms of prayers 3, 4 and 5 thereof (temporary injunction orders)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Articles 1, 31, 32, 33, 36, 40 and 47 (invoked by respondents)
  • Civil Procedure RulesOrder 1 rule 8 and 13(1) and (2)

Cases cited (3)

  • Chalicha Farmers Co-operative Society Ltd –vs- George Odhiambo & 9 Others
    (1987) eKLR
  • Giella –versus- Cassman Brown & Company Limited
    (1973) EA 358
  • Mrao –versus- American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Inherent jurisdiction to grant interlocutory injunctions in a land suit (Civil Procedure Rules; Article 159(2)(d) of the Constitution invoked on procedure)

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, "Johnson Mwangera Njoki & 8 others v Wellington Sanga & 13 others [2020] KEELC 1123 (KLR)", Case Analysis (2020). Not stated in the judgment (application dated 20th February, 2019 filed together with the plaint). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1123/eng@2020-09-16

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