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ELRCPartially AllowedCause No 1220 of 2016· [2016] KEELRC 462 (KLR)

Paul Ndungu Ndichu v Amos Mathenge Kabuthu Registered Trustees of Africa & 2 others [2016] KEELRC 462 (KLR)

Industrial Court (Employment and Labour Relations Court)
27 October 2016
HWHellen Wasilwa
2,442 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 Kenyan court ordered AIPCA's retired Archbishop to vacate office immediately and directed supervised church elections within two months.

What this practically means

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Executive summary

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The Claimant, Paul Ndungu Ndichu, moved the Industrial Court by Notice of Motion dated 11.10.2016 seeking orders that the retired Archbishop of the AIPCA vacate office immediately, that Bishop Synod Chairman Bishop Phillip Kubai take over as spiritual head for 135 days, and that elections for a new Archbishop be conducted, alternatively on 28.10.2016 under supervision of the Registrar of Societies with police protection, together with a temporary injunction against interference with the election process. The application was opposed by the 1st Respondent, the 2nd Respondent (through its assistant General Secretary) and the interested party, who questioned the Claimant's locus standi, denied frustrating elections, disputed that Philip Kubai was Bishop Synod Chairman (naming Bishop Suleiman Kimani instead), and explained that court orders in JR 408 and 451 of 2016 had stalled the succession process. The court framed two issues: the constitutional provision for filling the office of Archbishop, and the remedy for the church wrangles. Restating its Ruling of 29.7.2016 and Article VIII(8)(1) of the AIPCA Constitution, the court held the Archbishop could not remain in office past 70 years, and that successive applications in other courts were an abuse of process aimed at frustrating its orders. Finding the 17-Bishop resolution endorsing Kubai more credible than the suspect minutes, the court ordered the retired Archbishop to vacate office, Kubai to take over as Spiritual Head for at most 135 days, elections within two months under the Registrar of Societies' supervision, police security from OCS Jogoo Road Police Station, and a mention on 16.1.2017. Costs were in the cause. The relief was partially allowed, with the court setting its own election timetable rather than the specific date sought.

Key legal issues

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01

Constitutional provision for filling the office of Archbishop of AIPCA

Holding

The AIPCA Constitution in mandatory terms provides that on death, retirement or resignation of the head of the church, the Bishop Synod Chairman takes over for 135 days after which national delegates elect the spiritual leader; and the Archbishop's appointment terminates automatically at 70 years

Reasoning

The court restated Article VIII (8)(1) of the AIPCA Constitution providing automatic termination at age 70, and Chapter 4 Article 6(h)(1) providing for the Bishop Synod Chairman to take over for 135 days pending election by national delegates. The court had already in its 29.7.2016 Ruling found the 1st Respondent had attained retirement age and allowed him 60 days only. As no elections had been held and no report filed, the mandatory constitutional provisions had to be enforced.

p. 2
02

Remedy for the church wrangles and failure to implement prior orders

Holding

The wrangles can only be resolved by holding proper free and fair elections; the court ordered the retired Archbishop to vacate office, the Bishop Synod Chairman (Philip Kubai) to take over for at most 135 days, and elections within 2 months under supervision of the Registrar of Societies

Reasoning

The court found that application after application in different courts constituted an abuse of process bent on frustrating implementation of the July 2016 Ruling. On the disputed Chairmanship of the Bishop Synod, the court preferred the resolution signed by 17 Bishops endorsing Philip Kubai over the suspect minutes signed by one person. Free and fair elections under supervision were considered the appropriate remedy.

p. 5

Legal principles established

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  • Appointment as Archbishop automatically terminates on attainment of 70 years; the holder cannot remain in office past that age

Court orders

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  1. 1.The 1st Respondent (retired Archbishop) to vacate office immediately
  2. 2.Chairman of the Bishop Synod Philip Kubai to take over as Spiritual Head for at most 135 days
  3. 3.Parties to conduct elections for a new Archbishop within 2 months under the supervision of the Registrar of Societies
  4. 4.Parties to report back to Court at the expiry of that period
  5. 5.The Police (OCS Jogoo Road Police Station) to provide security
  6. 6.Mention on 16.1.2017

Authorities

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Legislation

  • Civil Procedure Rules 2010Orders 40; Order 51 Rules 1 and 4
  • Industrial Court ActSection 12(3)(ii) and (viii)
  • Industrial Court Procedure Rules 2010Rule 27(1)(c)(a,b & g)
  • Constitution of Kenya 2010Articles 2 and 23(3)(b)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
Jurisdiction invoked
Section 12(3)(ii) and (viii) of the Industrial Court Act; Articles 2 and 23(3)(b) of the Constitution of Kenya 2010

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, "Paul Ndungu Ndichu v Amos Mathenge Kabuthu Registered Trustees of Africa & 2 others [2016] KEELRC 462 (KLR)", Case Analysis (2016). Cause No 1220 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/462/eng@2016-10-27

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