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Case Brief · caselaw.co.ke
High CourtDismissedCivil Suit No 4925 of 1988· [1989] KEHC 64 (KLR)

Simon Ondeng' Omare & 3 others (suing on behalf of themselves as priests of the Diocese of Nambale, CPK) v Bishop of the Diocese of Nambale & another

High Court of Kenya
21 February 1989
3,481 words in judgment
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The bottom line

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Kenya's High Court refused to stop a bishop from withdrawing four priests' licences, saying dismissed clergy can be compensated with money rather than reinstated.

What this practically means

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Executive summary

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Four practicing priests of the Diocese of Nambale in the Church of the Province of Kenya applied under Order 39 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for a temporary injunction restraining the Bishop of Nambale and the Diocesan Chancellor from enforcing letters dated 16 October 1987 and 19 September 1988, by which their licences to officiate as church ministers were withdrawn and their surrender demanded. The plaintiffs argued that under Canon 15(2) of the CPK Constitution discipline required a complaint by a parishioner, that no such complaint existed, and that the Bishop flouted natural justice by condemning them without notice or a hearing; they relied on Hancox J in the Mbugua case, Calvin v Carr and Lee v Showmen's Guild. The defendants contended that notice was given, that Canon VIII(3)(b) independently empowered the Bishop to withdraw licences, that the remedy was appeal which the plaintiffs neglected, and that the matter was domestic and the plaintiffs guilty of laches and unclean hands. Applying Giella v Cassman Brown, Pall Ag J held that on the contradictory affidavit material no prima facie case was established; that loss of livelihood on dismissal is compensable in damages and not irreparable injury, the clergy/superiors relationship being one of master and servant; and that the balance of convenience, following Leary v National Union of Vehicle Builders and Teresa Shitaka, favoured refusing an injunction that would force defiant priests upon the Church pending trial. The application was dismissed with costs in the cause.

Key legal issues

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01

Prima facie case on breach of Canon 15(2) and natural justice

Holding

On the contradictory affidavit material the court could not find a breach of Canon 15(2) or of natural justice; no prima facie case was made out.

Reasoning

The court held that on the conflicting and inconsistent affidavits it could not determine at the interlocutory stage whether the defendants breached Canon 15(2) of the CPK Constitution or denied the plaintiffs notice and a fair opportunity to be heard. Without a full trial, a prima facie case with a probability of success was not established.

p. 4
02

Irreparable injury

Holding

Loss of livelihood from dismissal is compensable in damages and is not irreparable injury.

Reasoning

The court reasoned that every dismissed employee loses his livelihood at least temporarily, but that alone cannot constitute irreparable injury. A dismissed servant's remedy lies in damages and he cannot impose himself upon his master, so damages are an adequate remedy here.

p. 4
03

Balance of convenience and court intervention in church disciplinary matters

Holding

The balance of convenience favoured refusing the injunction; the church should not be forced to accept defiant clergy pending trial.

Reasoning

Following Leary v National Union of Vehicle Builders and Teresa Shitaka v Mary Mwamodo, the court held that it would not be right to force the applicants on the Church pending trial. The church depends on the loyalty and reliability of its clergy, and allowing defiant priests to officiate pending trial would encourage disobedience to church hierarchy. The plaintiffs' conduct was also relevant under Calvin v Carr.

p. 5
04

Court's jurisdiction over church domestic decisions

Holding

The court may intervene in church internal matters where natural justice is breached, but intervention was not warranted at this interlocutory stage.

Reasoning

Counsel for the plaintiffs relied on Hancox J in Rev Canon Leonard Mbugua v Most Rev Festa Habakuk Olang and on Calvin v Carr and Lee v Showmen's Guild to establish that courts may correct clear breaches of natural justice by domestic tribunals. The court acknowledged this principle but found on the material before it that a breach could not yet be established.

p. 3

Legal principles established

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  • The relationship between clergy and their church superiors is one of master and servant; a dismissed servant's remedy is in damages and he cannot impose himself upon his master.
  • Loss of livelihood following dismissal is not, particularly in these circumstances, irreparable injury not compensable by an award of damages.
  • The court will not grant an interlocutory injunction forcing an employee upon his employer/organisation pending trial; balance of convenience favours refusal.

Court orders

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  1. 1.Dismissed the plaintiffs' application for a temporary injunction
  2. 2.Ordered that the costs of the application shall be costs in the cause

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 39
  • Constitution of the Church of the Province of Kenya (CPK)Canon 15(2); Canon VIII(3)(b)

Cases cited (7)

  • Rev Canon Leonard Mbugua vs The Most Rev Festa Habakuk Olang and another
    High Court Civil Case No 3338 of 1979 (unreported)

    Court may intervene in church domestic decisions to correct clear breaches of natural justice.

  • Calvin vs Carr and others
    [1979] 2 All ER 440

    Decision of domestic tribunal in breach of natural justice is void but voidable in effect until declared; review must consider conduct of complainant and gravity of breach.

  • Lee vs Showman's Guild of Great Britain
    [1976] 1 All ER 1175

    Courts' jurisdiction over domestic tribunal decisions involving questions of law, notice of charge and opportunity to be heard.

  • Giella vs Cassman Brown and Co Ltd
    [1973] EA 358

    Principles for granting interlocutory injunctions: prima facie case, irreparable injury, balance of convenience.

  • Larry (Leary) vs National Union of Vehicles Builders
    (1971) 1 Ch 34

    Balance of convenience: court should not force a plaintiff onto a union/organisation pending trial.

  • Teresa Shitaka vs Mary Mwamodo and 4 others
    Civil Application NAI 41 of 1986 (unreported)

    Following Leary, refusal to force an applicant on an organisation pending appeal/trial.

  • Shanks v Plumbing Trades Union

    Distinguished within Leary as a case of mere non-disclosure.

Jurisdiction invoked
Inherent jurisdiction of the High Court under section 3A of the Civil Procedure Act and Order 39 of the Civil Procedure Rules (interlocutory injunction application)

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, "Simon Ondeng' Omare & 3 others (suing on behalf of themselves as priests of the Diocese of Nambale, CPK) v Bishop of the Diocese of Nambale & another", Case Analysis (1989). Civil Suit No 4925 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/1989/64/eng@1989-02-21

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