Pentecostal Assemblies of God Kenya (Through Its Registered Trustees) & 3 others v Elegwa & 4 others (Land Case 134 of 2017) [2022] KEELC 3500 (KLR)
The bottom line
#A Kitale court dismissed a church land dispute challenge, ruling that only a party can choose its own lawyer and courts cannot resolve church leadership fights.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over church leadership/authority disputes
The court lacks jurisdiction to determine who among wrangling factions may act for or give instructions on behalf of the 1st plaintiff; that is a matter for the High Court and subordinate courts
Section 13 of the Environment and Land Court Act defines the court's mandate over environment and land matters only. Questions of who holds church office and may authorise suits or correspondence are leadership/constitutional questions of the church, outside that mandate. Relying on the Owners of Motor Vessel 'Lillian S' line of authority, the court must down its tools once it finds it lacks jurisdiction.
Whether Patrick Lihanda was in contempt of orders in Kisumu CMCC No 543 of 2018, Hamisi PMCC No 15 of 2019 and Kakamega CMCC No 100 of 2019
No contempt established: the Kakamega CMCC orders were stayed by the High Court, the Hamisi orders lapsed on transfer of the file, and the Kisumu injunction lapsed under Order 40 rule 6 after twelve months
The applicants bore the burden of proving the orders were subsisting when Lihanda testified on February 16, 2021. The Kakamega CMCC No 100 of 2019 proceedings were stayed by an order of March 17, 2020 in Civil Appeal No 33 of 2020. The Hamisi order was expressly to last only pending transfer to the High Court. The Kisumu injunction was conditional on a six-month caretaker committee and in any event lapsed after twelve months (by March 7, 2020), with no material showing extension.
Setting aside the consent order of February 16, 2021
Refused; the alleged 'pretence' about missing office keys is not a recognized ground and no fraud, mistake, illegality or root-going error was demonstrated
Consent orders have contractual effect and can only be set aside on grounds justifying setting aside a contract, per Flora N Wasike v Destimo Wamboko and related authorities. The applicants produced no material proving the witness pretended that the key-holder was absent; mere pretence is not among the recognized grounds.
Removal of Kidiavai & Co Advocates from record
Declined; the right to representation by counsel of choice (implied in Articles 48, 50(1) and 159(2)(a)) belongs to the plaintiff, and the authority question is outside the court's jurisdiction
Following Tom Kusienya v Kenya Railways and Delphis Bank v Channan Singh Chatthe, a litigant's choice of advocate may only be disturbed in exceptional circumstances such as conflict of interest. The defendants, as an adverse party, cannot choose counsel for the plaintiffs, and determining who may give instructions is a leadership question outside this court's remit.
Legal principles established
#- A party has the sole right to choose its own advocate; an adverse party cannot dictate the choice of counsel absent conflict of interest
- A consent order may only be set aside on grounds that would justify setting aside a contract, e.g. fraud, collusion, or misapprehension of material facts
- An interlocutory injunction lapses after twelve months unless the court orders otherwise, per Order 40 rule 6 of the Civil Procedure Rules
- He who alleges must prove; the party alleging breach of a court order must prove the order was still subsisting
- A person not enjoined as a party cannot be condemned unheard - natural justice constrains relief sought against non-parties
Court orders
#- 1.The entire application dated January 7, 2022 is dismissed with costs to the respondents
- 2.This suit shall be mentioned on October 6, 2022 for directions regarding further hearing
- Jurisdiction invoked
- Section 13 of the Environment and Land Court Act, Act No 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pentecostal Assemblies of God Kenya (Through Its Registered Trustees) & 3 others v Elegwa & 4 others (Land Case 134 of 2017) [2022] KEELC 3500 (KLR)", Case Analysis (2022). Not stated in the extract (suit filed July 28, 2017; ruling delivered at Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3500/eng@2022-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.