Trustees of Kwa Mutu Pentecostal Evangelistic Fellowship of Africa alias PEFA Church v Muthini (Environment & Land Case 242 of 2010) [2024] KEELC 5279 (KLR)
The bottom line
#A Machakos court evicted a former pastor who stayed on church land for 14 years and awarded the church Kshs 1.5 million—but could not order return of movable church items.
What this practically means
#Executive summary
#Key legal issues
#Burden of proof in an undefended suit
The plaintiff must still prove its case to the required standard despite absence of a defence
Section 107 of the Evidence Act places the burden on the plaintiff. The court relied on Kirugi v Kabia and Mercy Wanjiru Nyaga to hold that uncontroverted evidence does not absolve the plaintiff of proving its case, else frivolous claims would succeed on undefended hearings.
Ownership of the suit property
The plaintiffs proved allocation of the suit property by Muka Mukuu Cooperative Society and lawful acquisition protected under Article 40
The plaintiffs produced a confirmation letter dated 6th August 2010, an allotment letter dated 28th September 1995, survey fee receipts and unshaken testimony of a founding member. The defendant adduced no pleading or evidence to displace this.
Trespass and damages
The defendant's continued occupation after termination as pastor was unlawful trespass; general damages of Kshs 1,500,000 awarded
The defendant's presence was tied to his role as PEFA pastor; renaming the church to Jordan River and remaining after termination was unlawful. Considering the one-acre size and 14 years' occupation, the court awarded Kshs 1,500,000 general damages, trespass being actionable per se.
Jurisdiction over return of movables
The court lacks jurisdiction to order return of movable church items as they are not land under Article 260
Article 162(2)(b) confines the court to environment and land disputes. The guitar, amplifier, seats, speakers, cloths, battery and iron sheets are neither land nor fixtures, so prayer 2 of the plaint fell outside the court's jurisdiction.
Nature of the injunction remedy
The prayer as drafted mixed mandatory and prohibitory injunctions; the effective remedy granted was a permanent injunction
A mandatory injunction directs performance while a prohibitory injunction restrains acts; the prayer was a confusing mix. Exercising its inherent power to deliver substantive justice under Article 48, the court granted a permanent injunction restraining the defendant from the suit property.
Legal principles established
#- Whether or not a suit is defended, the plaintiff bears the burden of proving their claim on a balance of probabilities
- Submissions cannot substitute for pleadings or evidence
- Trespass is actionable per se without proof of actual loss
- Movable items that are not fixtures do not fall within the constitutional definition of land and are outside ELC jurisdiction
Court orders
#- 1.An order of permanent injunction restraining the defendant from remaining on, interfering, trespassing or in any way dealing with the plaintiffs' premises Kwa Mutu Pentecostal Evangelistic Fellowship Africa
- 2.General damages for trespass of Kshs 1,500,000/- awarded to the plaintiffs against the defendant
- 3.The OCS Donyo Sabuk Police Station to ensure compliance of the orders issued
- 4.Costs of the suit awarded to the plaintiffs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; Section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Trustees of Kwa Mutu Pentecostal Evangelistic Fellowship of Africa alias PEFA Church v Muthini (Environment & Land Case 242 of 2010) [2024] KEELC 5279 (KLR)", Case Analysis (2024). Not stated in the judgment (plaint dated 12th November 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5279/eng@2024-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.