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
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case on breach of Canon 15(2) and natural justice
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.
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.
Irreparable injury
Loss of livelihood from dismissal is compensable in damages and is not irreparable injury.
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.
Balance of convenience and court intervention in church disciplinary matters
The balance of convenience favoured refusing the injunction; the church should not be forced to accept defiant clergy pending trial.
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.
Court's jurisdiction over church domestic decisions
The court may intervene in church internal matters where natural justice is breached, but intervention was not warranted at this interlocutory stage.
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.
Legal principles established
#- 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
#- 1.Dismissed the plaintiffs' application for a temporary injunction
- 2.Ordered that the costs of the application shall be costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.