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ELRCDismissedCause No. 2054 of 2013· [2016] KEELRC 586 (KLR)

Bishop Bakari Kea v Evangelical Lutheran Church in Kenya (Elck) Through Arch-Bishop Walter Obare Omwanza &2 otherS [2016] KEELRC 586 (KLR)

Employment and Labour Relations Court
4 October 2016
HWHellen Wasilwa
4,332 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed it can punish contempt and refused to throw out a bishop's church dispute without a full hearing.

What this practically means

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Executive summary

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The Respondents brought a notice of motion dated 28 July 2014 seeking striking out of the plaint, termination of the entire proceedings, and in the alternative removal of the names of Archbishop Walter Obare Omwanza, Rev. Benjamin Lemosi and Joseph Muchiri from the suit, with costs. They argued there was no proper claimant or defendant, that the Claimant lacked locus standi, that the Court lacked jurisdiction over contempt other than contempt on the face of the court, that the suit was overtaken by events since the Claimant had been removed as Bishop of the Central Diocese of the Evangelical Lutheran Church in Kenya and a new Bishop installed, that the decisions complained of were made by organs (the Executive Committee and the General Meeting) not party to the suit, and that courts should not interfere in church domestic matters. The Claimant opposed, contending the church was properly sued through its officials, that the organs were not juristic persons, that installation of a new Bishop defied court orders, and that all issues should go to trial. The court framed three issues: jurisdiction over contempt, the Claimant's locus, and the Respondents' capacity to be sued. It held the ELRC, being a court of the same status as the High Court under Article 162(2), has jurisdiction to punish for contempt; that the Claimant has locus under Article 50(1); and that questions of the Respondents' capacity as church officials could only be resolved at trial. The application was dismissed, parties were directed to abandon all applications and proceed to the main hearing on a priority basis, with mention on 18 October 2016 for directions.

Key legal issues

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01

Whether the ELRC has jurisdiction to punish for contempt of court

Holding

The ELRC, being a court of the same status as the High Court, has jurisdiction to punish for contempt

Reasoning

The ELRC is established under Article 162(2) of the Constitution as a court with the same status as the High Court. Section 5 of the Judicature Act confers on the High Court the power to punish for contempt. By parity of status, the ELRC is equally clothed with that jurisdiction. The argument that the Court lacks jurisdiction over contempt other than contempt on the face of the court was rejected.

p. 8
02

Whether the Claimant has locus standi to bring the suit

Holding

The Claimant has locus standi; he has a right to file suit and be heard

Reasoning

The Claimant describes himself as the Bishop of ELCK Central Diocese complaining of the treatment meted out to him. Article 50(1) of the Constitution guarantees every person the right to have any dispute that can be resolved by application of law decided in a fair hearing. The court found the objection to his locus untenable and held he had a right to file suit and be heard.

p. 8
03

Whether the Respondents have capacity to be sued

Holding

The question of the Respondents' capacity as church officials is a matter for trial

Reasoning

The Respondents are described in the plaint as Archbishop, Ag. Secretary and Ag. Treasurer of the ELCK, a society registered under the Societies Act. A society runs its affairs through its offices, and whether the Respondents are officials cannot be established before the evidence is heard. The court declined to strike out the pleadings on this basis, following the DT Dobie caution against deciding merits at a preliminary stage.

p. 8

Legal principles established

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  • A court with the same status as the High Court, such as the ELRC, has jurisdiction to punish for contempt of court
  • Every person has a right of access to court to have disputes resolved, and locus standi cannot be lightly denied
  • Questions of the capacity of officials sued for an unincorporated association are matters for trial, not for striking out

Court orders

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  1. 1.The Respondents' application dated 28.7.2014 is dismissed
  2. 2.Parties to abandon all applications and proceed to the main hearing
  3. 3.A hearing date of the main suit to be set on priority basis
  4. 4.Mention on 18/10/2016 for directions on the hearing

Authorities

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Legislation

  • Industrial Court ActSections 3, 12, 13
  • Industrial Court (Procedure) Rules, 2007Rules 2, 5(2), 10(5), 14(3), 14(4), 14(5), 16(5)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 1 Rule 10(2); Order 2 Rule 15(1)(b),(c),(d); Order 4 Rule 1(1)(f); Order 4 Rule 5
  • Judicature ActSection 5
  • Labour Relations Act, 2011Sections 3(1) and (2)
  • Societies Actnot specified
  • Constitution of Kenya, 2010Article 162(2); Article 50(1)

Cases cited (10)

  • Muchunga Investments Ltd vs. Safaris Unlimited (Africa) Ltd & 2 Others
    (2009) eKLR
  • Kenya Audio Visual Works Dealers Association vs. Fox Theatre Ltd & 4 Others
    HCCC No. 291 of 2003
  • Artistic vs. Art Forma
    (199)4 All ER 277
  • Sathi Vijay Kumar vs. Tota Singh & Others
  • Francis Karani Elijah & 2 Others vs. Chairman of KANU & 2 Others
    Miscellaneous 238 of 2002
  • Jane Nyambura Joshua vs. Apostolic Faith Church
  • Kimani Ngunjiri vs. David Manyara
    (2015) eKLR
  • Hinga & Another vs. P.C.E.A. through Rev. Dr Njoya & Another
    (1986) KLR 317
  • DT Dobie & Company Ltd vs Muchina
    (1982) KLR
  • Kellaway vs. Bury
    (1892) 66 LT 599
Jurisdiction invoked
Article 162(2) of the Constitution; Sections 3, 12 and 13 of the Industrial Court Act, 2011

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 Bakari Kea v Evangelical Lutheran Church in Kenya (Elck) Through Arch-Bishop Walter Obare Omwanza &2 otherS [2016] KEELRC 586 (KLR)", Case Analysis (2016). Cause No. 2054 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/586/eng@2016-10-04

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