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ELRCDismissedNot stated in the judgment· [2016] KEELRC 732 (KLR)

Paul Ndungu Ndichu v Amos Mathenge Kabuthu & another [2016] KEELRC 732 (KLR)

Employment and Labour Relations Court
1 September 2016
HWHellen Wasilwa
3,170 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled that only the Registrar of Societies' official membership list can decide who elects the AIPCA Archbishop, dismissing attempts to alter it mid-term.

What this practically means

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Executive summary

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This was an Amended Notice of Motion dated 19.8.2016 filed by Stanley Mburu Mwangi, Secretary General of the AIPCA, seeking interim stay of orders issued by Nduma Nderi J on 5/8/2016, a temporary injunction barring the Administrative Secretary from convening processes to fill the position of Archbishop, and setting aside of the orders of 4/8/2016 and 5/8/2016 concerning the composition of the AIPCA National Central Board. The Applicant contended that the list of Central Board members tabled by the Claimant before Nderi J was not authentic, containing deceased, resigned or improperly removed members, and that material non-disclosure had obtained the orders ex parte. The Claimant and the 2nd Respondent opposed, maintaining the list matched Registrar of Societies records. The Interested Party argued the Applicant lacked locus. Justice Hellen Wasilwa framed the central question as identifying the legitimate members of the Central Board entitled to elect the Archbishop. Applying the AIPCA Constitution, she held that Bertha Mwangi's resignation was unproved, Bishop Kamwaro's suspension was void for want of due process, and the purported removal of Chairman Paul Watoro Gichu was suspect owing to contradictory dates and prior contempt proceedings. Since board members hold office for five years and the last elections were in 2012, any midstream change was an illegality. The application was dismissed and the Court's orders of 29.7.2016 were to be enforced on the basis of the Claimant's list per the Registrar of Societies records, excluding deceased members.

Key legal issues

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01

Valid resignation of Bertha Mwangi

Holding

Resignation not proved; advert treated as contested and invalid

Reasoning

The Applicants relied on a newspaper advert claiming Bertha Mwangi resigned as Vice Treasurer. The Claimants denied the resignation and questioned who paid for and posted the advert. No evidence was adduced identifying who posted it, so the Applicants failed to discharge the burden of proof.

p. 6
02

Suspension of Bishop Julius Kamwaro

Holding

Suspension invalid for non-compliance with the AIPCA Constitution's disciplinary procedure

Reasoning

The Constitution requires investigation, an investigation report forwarded to the Central Board, and written approval signed by the Archbishop, National Chairman and Secretary General. No investigation report was attached and no evidence showed Central Board sanction; the suspension without due process does not affect his membership.

p. 6
03

Removal of National Chairman Paul Watoro Gichu

Holding

Removal treated as invalid; Gichu remains Chairman

Reasoning

The removal letter dated 13th June 2014 referenced a minute dated 2nd July 2014, an internal contradiction in dates. The Applicants had also been cited for contempt in Civil 124/2014 for introducing a new list of Bishops. Given these contradictions, the removal was suspect and not sanctioned by law.

p. 6
04

Composition of the legitimate Central Board eligible to elect the Archbishop

Holding

The authentic list is that from the Registrar of Societies records as submitted by the Claimant, subject to deceased members

Reasoning

Under the AIPCA Constitution, board members hold office for five years until the next general meeting. The last elections were held in 2012 and five years had not elapsed. Changing the list midstream is an illegality. The Registrar of Societies records in Appendices 3a to 4 of the Claimant's documents therefore prevail.

p. 6

Legal principles established

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  • A resignation asserted by a party must be proved by that party; where it is denied and no evidence shows who posted the resignation notice, it is treated as contested and invalid
  • Suspension or removal of a church official without following the constitutionally prescribed disciplinary procedure is of no effect
  • Elected board members hold office for five years and cannot be replaced mid-term by extra-constitutional means

Court orders

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  1. 1.The Amended Notice of Motion dated 19.8.2016 is dismissed
  2. 2.The Court's orders of 29.7.2016 be enforced following the list submitted in Appendix 3a to 3dd and PNN 4 of the Claimants' application dated 4/8/2016

Authorities

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Legislation

  • AIPCA ConstitutionChapter V (VII) (1) (A) (i)
  • AIPCA ConstitutionClause 8
  • AIPCA ConstitutionChapter V (VII) (1) (A) (ix)
  • AIPCA ConstitutionChapter 3 Article 4 (B) and (C)
  • AIPCA ConstitutionArticle IV (C) ii-v
  • AIPCA ConstitutionChapter V (VII) (1) (A) (ii)
  • AIPCA ConstitutionChapter V(vii)(i)(A)(ix)
  • AIPCA ConstitutionArticle V; Articles VII and XI
  • AIPCA ConstitutionClause 3A, 4(b) and (c); Article 7(1)(a)(2); Clause 4 Article 7(h)(i)
Jurisdiction invoked
Inherent and interlocutory jurisdiction of the Employment and Labour Relations Court over a matter pending before it (subordinate to the orders of Nduma Nderi J of 5/8/2016 in the same suit); no specific provision cited

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 & another [2016] KEELRC 732 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/732/eng@2016-09-01

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