Wilson Shisia Nyangweso v Church of God in East Africa (K) [2016] KEELRC 1486 (KLR)
The bottom line
#A Kenyan employment court struck out a pastor's case against his church because he asked for temporary orders as final relief and skipped the church's internal complaints process.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case and competence of the Claim
The Claim was defective because its substantive prayers were temporary injunctions; no prima facie case with probability of success was shown.
The Court held that a claim whose main prayers are temporary injunctions is, in substance, one long application for interim relief; temporary orders cannot be final orders. Without the two temporary orders, what remained was costs, interest and unspecified relief, rendering the Claim bad in law and stillborn. The Claimant therefore failed at the first Giella principle.
Exhaustion of internal dispute resolution mechanism
The Claimant should have pursued the internal grievance and arbitration process under Article 14 of the Church Constitution before filing suit.
Article 14.0.0(4) sets out a complaint route through the Church Arbitration and Disciplinary Sub-Committee, the Committee and the Executive Council. The Court held it was the Claimant, not the Church, who had grievances to pursue through this mechanism, and that the mechanism's preference for internal resolution is rooted in scriptural teaching and supported by Article 159 of the Constitution of Kenya.
Interests of children and balance of convenience
The balance of convenience favours rejecting the Claimant's continued presence at the Church and School premises.
The Claimant faced allegations of defiling a six-year-old child who worshipped at and attended school within the Church compound. The Court held the interests of the complaining child and over 200 other children were paramount, and that the Church and its members would suffer reputational, psychological and possible physical harm from his continued presence.
Compulsory leave versus suspension
Sending the Claimant on compulsory leave was not unlawful or prejudicial despite the Constitution not providing for 'compulsory leave'.
Article 23.0.11 of the Church Constitution contemplates six kinds of leave, not compulsory leave, but Article 4.2.3(e) permits immediate suspension for gross misconduct. The Court held both terms denote administrative leave pending investigations, and the variance in terminology caused the Claimant no prejudice.
Legal principles established
#- Temporary orders cannot be sought as the final or substantive orders in a claim; a claim resting only on temporary injunctive relief is defective.
- An employee or Church member with complaints about his treatment by the institution should exhaust the institution's internal dispute resolution mechanism before approaching the Court.
- Where suspension and 'compulsory leave' both denote administrative leave pending investigations, the difference in terminology does not prejudice the employee.
- In matters touching children, the interest of the child is the primary consideration.
Court orders
#- 1.The application by the Claimant dated 10th February 2016 is rejected.
- 2.The entire Claim is improperly before the Court and is hereby struck out, with costs to the Respondent.
- Jurisdiction invoked
- Employment and labour relations dispute under Article 162(2) and Article 159 of the Constitution of Kenya (as invoked by the Court)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Daniel Michael Juma v Anglican Church of Kenya All Saints Cathedral Diocese [2018] KEELRC 2458 (KLR)[2018] KEELRC 2458 (KLR)5 Feb 2018
Cite this brief
#Cite this brief
Caselaw, "Wilson Shisia Nyangweso v Church of God in East Africa (K) [2016] KEELRC 1486 (KLR)", Case Analysis (2016). Industrial Cause as filed on 12th February 2016 (application dated 10th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1486/eng@2016-03-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.