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ELRCPartially AllowedCause No 1220 of 2016· [2016] KEELRC 798 (KLR)

Paul Ndungu Ndichu v Amos Mathenge Kabuthu & 2 others [2016] KEELRC 798 (KLR)

Employment and Labour Relations Court
Invalid Date
5,327 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled the AIPCA Archbishop must retire at 70 but let him stay on briefly while a successor is elected within 60 days.

What this practically means

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Executive summary

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This judgment of the Employment and Labour Relations Court (Wasilwa J) determines three interlocutory applications arising from a dispute over the Archbishopric of the Africa Independent Pentecostal Church of Africa (AIPCA). The Claimant, a Church member, sought temporary and mandatory injunctions to restrain the 1st Respondent, Archbishop Amos Mathenge Kabuthu, from holding office and to compel his retirement on the ground that he had attained the retirement age of 70 years fixed by Article VIII(8)(ii) of the Church Constitution. The Respondents and the Interested Party (the Central Board) opposed, arguing that the Board had resolved on 27.5.2016 to extend his term to the end of his term in June 2018, that the Claimant lacked locus standi, and that the orders were unenforceable against the Registered Trustees. The Court found the Claimant had locus standi, since the Respondents failed to produce the register of members required by the Church Constitution to disprove his membership. It held that the retirement age provision permits service only up to 70 years unless the Central Board and Bishop Synod determine a later age in advance in general terms, which was not done, and that the 1st Respondent should therefore retire. However, because orders directing the Trustees were unenforceable (they have no mandate over election of the Archbishop), the Court vacated its interim orders of 22.6.2016 and the orders of Nderi J of 1.7.2016. It directed the Central Board to put in place a mechanism to elect a new Archbishop within 60 days, with the 1st Respondent holding office in the interim to avoid a leadership vacuum. No costs order was recorded.

Key legal issues

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01

Whether the Claimant has locus standi to bring the suit

Holding

The Claimant has locus; the Respondents failed to produce the register of members to disprove his membership despite his alleged possession of two membership numbers

Reasoning

Article III of the AIPCA Constitution provides that membership is proved by a register of members kept by the Local Church. The Respondents alleged the Claimant held two membership numbers (4575 and 4571) and had not paid subscriptions, but did not exhibit the register to show he was not a member. In the absence of that register, the Court found his membership established and his capacity to participate in church governance issues made out.

p. 9
02

Whether the 1st Respondent has attained the mandatory retirement age and must vacate office

Holding

The 1st Respondent has attained 70 years and should retire, as there was no indication that the Central Board or Bishop Synod had renewed or determined a later retirement age in advance

Reasoning

Article VIII(8)(II) of the Church Constitution provides that the appointment automatically terminates upon the holder attaining 70 years or such later age as may be determined by the Central Board and Bishop Synod. The Court read the proviso as requiring any later age to be predetermined in advance and in general terms, not to fit a sitting Archbishop. Although the Central Board resolved on 27.5.2016 to extend the 1st Respondent's term, the Court found no indication the retirement age had been renewed, and held the 1st Respondent, being over 70 per his Identity Card, should retire.

p. 10
03

Whether the orders sought were enforceable against the 2nd Respondent

Holding

The orders directing the 2nd Respondent (Registered Trustees) to ensure the 1st Respondent does not hold office were unenforceable, as the Trustees have no constitutional mandate to elect or remove the Archbishop

Reasoning

The AIPCA Constitution, Chapter IX Article XII(A), limits the role of the Registered Trustees to the care of immovable properties, investments and securities. The election of the Archbishop vests in a national delegate congress and the Central Board. An order directed at the Trustees to effect retirement or removal would therefore compel them to perform an act beyond their constitutional capacity, and such an order cannot continue to exist.

p. 10
04

Whether a prima facie case with a probability of success was established

Holding

The Court found the Claimant had established a prima facie case with a probability of success, but tempered the remedy to avoid a leadership vacuum in the Church

Reasoning

With locus established and the retirement age issue a foregone conclusion, the Court found a prima facie case. However, considering the nature of the entity before it being a Church with approximately 3.5 million followers and only one Archbishop with no acting position, the Court vacated the interim orders and directed the Central Board to elect a new Archbishop within 60 days, with the 1st Respondent holding office in the interim.

p. 10

Legal principles established

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  • The retirement age provision allows service up to 70 years unless the Central Board and Bishop Synod determine a later age in advance, and any such determination must be general rather than tailored to a sitting Archbishop
  • Membership of the Church is proved by the register of members kept by the Local Church, and in the absence of a register showing otherwise, the Claimant's membership and locus standi stand established
  • The office of Archbishop must not be left vacant; the incumbent may hold over pending appointment of a successor

Court orders

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  1. 1.The interim orders of 22.6.2016 and the orders given by Hon. Justice Nderi on 1.7.2016 are vacated
  2. 2.The Central Board of the AIPCA is ordered to put in place a mechanism to elect a new Archbishop within 60 days
  3. 3.The 1st Respondent is allowed to hold office pending the appointment of the new Archbishop within 60 days

Authorities

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Legislation

  • AIPCA ConstitutionArticle III
  • AIPCA ConstitutionArticle VIII (8) (ii)
  • AIPCA ConstitutionChapter IX Article XII(A) and (B)
  • AIPCA ConstitutionArticle VIII (8) (D) (I)
  • AIPCA Standing OrdersOrder 26(2)(a)
  • Interested Party's ConstitutionClause 8

Cases cited (4)

  • Abdalla Hadi Rifai vs. International Donkey Protection Trust (K)
    (2013) eKLR
  • Omar Salim Swedi Vs KRep Bank Limited & Another
    (2008)
  • Giella vs. Cassman Brown
    (1973) EA 358
  • Kenya Breweries Ltd vs. Washington Okeyo
    (2003) EA 209
Jurisdiction invoked
Original jurisdiction over the employment/office dispute; no specific constitutional or statutory provision cited in the judgment

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 & 2 others [2016] KEELRC 798 (KLR)", Case Analysis (). Cause No 1220 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/798/eng@2016-07-29

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