Mark Mumo Mutua v Abraham Mulwa, Presiding Bishop, Area Church Council & 1 other

order be issued restraining the Respondent from hearing/determining disputes of a case of any member/persons/pastors based on the sections/Roman VI (E)/Chapter XI (A) (F) and section 2(B) of the by-laws of AIC constitution and AIC KENYA constitutioniv. That the alternative to (2) and (3) above a declaratory order be and is hereby issued that it would be unconstitutional of any member, to carry on any member/persons/pastors based on the sections/Roman VI (E)/Chapter XI (A) (F) and section 2(B) of the by-laws of AIC constitution and AIC KENYA constitution. 2. In response, the Respondents on 27th February 2025 filed a Notice of Preliminary Objection challenging the competence of both the Petition and the Application on grounds that;i. The suit is premature, defective, a non-starter and an abuse of the court process. No document/annexure has been attached to support the claims and/ or show the Petitioner is a member of the Africa Inland Church.ii. The 1st Respondent is not the “Presiding Bishop, Area Church Council” and no such title exists.iii. The 2nd Respondent lacks legal capacity under Section 3 of the Societies Act and Section 3 (3) of the Trustees (Perpetual Succession) Act to sue or be sued. It is not a body corporate for it to be sued as a legal personality.iv. The Petitioner has not exhausted the Dispute Resolution Process as provided under the Constitution and by-laws of the Africa Inland Church –Kenya which, in the light of Article 159(2)(c) of the Constitution of Kenya, is to take precedence before the Court can intervene. The Petitioner has not demonstrated that he applied that process before approaching the Court. 3. The Preliminary Objection was canvassed by way of written submissions. Petitioner’s Submissions 4. The Petitioner submits that the Respondents’ Preliminary Objection does not meet the legal threshold articulated in Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696. In that seminal decision, Law J.A. underscored that a valid preliminary objection must be founded purely on a point of law which, if argued successfully, is capable of disposing of the matter at the outset. The Petitioner contends that the objection before this Court is inextricably interwoven with disputed factual issues requiring evidentiary interrogation, thereby falling outside the scope of what Mukisa Biscuits contemplates. Reliance is placed on Oraro v Mbaja [2005] eKLR, where Ojwang J. (as he then was) cautioned that a preliminary objection must not be “blurred with factual details liable to be contested and…proved through evidence,” and that any assertion bearing factual aspects calling for proof is, in principle, not a proper preliminary objection. 5. The Petitioner further contends that the Respondents’ own conduct demonstrates the factual complexity of the matters raised. The Respondents filed a detailed Replying Affidavit sworn on 28th February 2025 by the 1st Respondent “under protest,” purporting to bolster the Preliminary Objection through evidentiary claims. That affidavit raises contested factual assertions including the Petitioner’s alleged failure to establish membership in AIC, the correctness of the 1st Respondent’s title, and the alleged non-exhaustion of internal dispute resolution mechanisms. According to the Petitioner, the Respondents’ reliance on affidavit evidence to sustain their objection confirms that it is not anchored on a pure point of law but is dependent on the ascertainment of disputed facts. The Petitioner invokes Oraro v Mbaja (supra) for the proposition that a preliminary objection cannot lie where its resolution necessitates factual investigation. 6. On the question of locus standi, the Petitioner maintains that his membership in AIC-Kenya is expressly pleaded in the Petition, wherein he avers that he is a member acting both in his personal capacity and on behalf of other congregants. Counsel argues that this averment stands uncontroverted, https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17813/eng@2025-09-10 2

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as the Respondents have not expressly denied the fact of membership but merely challenge the absence of documentary proof. The Petitioner submits that, at the preliminary stage, the Court is enjoined to assume the correctness of pleaded facts. Whether the Petitioner is indeed a member of AIC-Kenya is therefore a factual question unsuited for resolution by way of a preliminary objection. 7. In the alternative, counsel argues that Article 22 of the Constitution confers broad and liberal standing to any person alleging a violation or threat of violation of fundamental rights. The Petitioner submits that he is entitled to bring the Petition not only in his personal capacity but also “in the interest of a group or class of persons” pursuant to Article 22(2)(b). In this constitutional context, counsel argues, the insistence on formal letters of authority or documentary proof of membership at the preliminary stage is unwarranted. To strike out the Petition on such technical grounds would offend Article 159(2) (d), which commands that justice be administered without undue regard to procedural technicalities. 8. On the issue of the doctrine of exhaustion, the Petitioner asserts that it would be unjust to compel him to pursue internal dispute resolution mechanisms whose validity, impartiality, and constitutional conformity he directly challenges. He argues that the High Court’s jurisdiction to adjudicate alleged violations of constitutional rights cannot be ousted or postponed by private internal processes especially where those processes are themselves impugned. He relies on Speaker of National Assembly v Njenga Karume [1992] KLR 21, in which the Court of Appeal affirmed that the exhaustion doctrine is not absolute and may be departed from where the internal remedy is ineffective, impractical, or illsuited to the resolution of the constitutional controversy at hand. The Petitioner therefore urges the Court to find that this matter falls within the recognized exceptions to the exhaustion doctrine. 9. The Petitioner emphasizes the High Court’s constitutional mandate under Article 165(3)(b) to hear and determine alleged violations of fundamental rights. He argues that his Petition raises serious constitutional questions touching on alleged violations by a private religious entity and should not be dismissed summarily. Invoking the national values under Article 10, the Petitioner submits that courts have a duty to ensure that private bodies, including churches, adhere to constitutional norms. He relies on Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, where the Court of Appeal acknowledged that courts may intervene in ecclesiastical disputes where internal mechanisms have broken down or fall short of constitutional standards. The Petitioner contends that the AIC-K internal processes, being ambiguous and allegedly unjust, justify judicial intervention. 10. As to the alleged misdescription of parties, the Petitioner submits that the reference to “Presiding Bishop, Area Church Council” instead of “Presiding Bishop of AIC-Kenya” constitutes a minor misnomer, curable by amendment. He notes that he has already filed an application to effect the requisite correction. The Petitioner further asserts that the intended party Rev. Abraham Mulwa was duly identified, served, and has actively participated in the proceedings by filing a Replying Affidavit, thereby suffering no prejudice. He invokes Order 1 Rule 9 of the Civil Procedure Rules, which provides that no suit shall be defeated on account of misjoinder or non-joinder. 11. Regarding the capacity of the 2nd Respondent, the Petitioner acknowledges that AIC-Kenya is an unincorporated society under the Societies Act. However, he maintains that this does not bar constitutional litigation. He urges the Court to exercise its discretion to allow its officials to represent the entity or to permit substitution with the Registered Trustees, whom the Respondents themselves identify as the proper party. He expresses willingness to implead the Trustees to cure any procedural defect, and argues that striking out the Petition on this basis would elevate form over substance. The Petitioner further notes that any defect in the 2nd Respondent’s capacity does not affect the 1st Respondent, who is a natural person properly before the Court and the central actor in the impugned conduct thus the Petition may proceed against him irrespective of the Court’s determination concerning the 2nd Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17813/eng@2025-09-10 3

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12. The Petitioner urges the Court to dismiss the Preliminary Objection, contending that it has been deployed as a tactical device to derail the proceedings rather than to raise a dispositive point of law. Placing reliance on IEBC v Jane Cheperenger & 2 Others [2015] eKLR, he submits that a legitimate preliminary objection is intended to preserve judicial time, not to forestall substantive adjudication. He maintains that the issues raised in the Petition are weighty constitutional questions requiring ventilation at a full hearing, and that the Respondents’ objections being grounded in contested facts and curable technicalities fall short of the Mukisa Biscuits standard. He accordingly prays that the objection be dismissed and the matter proceed to determination on its merits, subject to any procedural amendments the Court may deem fit. Respondents’ Submissions 13. The Respondents submit that their Preliminary Objection squarely meets the established criteria for a proper objection in law. They rely on the Mukisa Biscuits decision (supra), particularly the dictum of Law J.A., that “a preliminary objection must consist of a pure point of law which, if successfully taken, may dispose of the entire suit”. Counsel contends that the issues they raise namely, the question of jurisdiction grounded in the doctrine of exhaustion of alternative remedies, and the legal capacity of the 2nd Respondent are pure points of law which do not require the resolution of contested facts. 14. It is argued that the factual basis underlying the objection is either admitted or readily discernible from the face of the pleadings. Specifically, it is not disputed that the Petitioner did not invoke or exhaust the internal dispute resolution mechanisms provided under the AIC-Kenya Constitution and By-Laws prior to approaching the Court; and it is apparent from the record that the 2nd Respondent, described as the “Central Church Council of AIC-K”, is not an incorporated legal entity. The Respondents therefore maintain that these issues are amenable to determination at the preliminary stage without recourse to evidentiary inquiry. 15. The Respondents rely on judicial dicta emphasising the policy rationale underlying preliminary objections. They cite pronouncements of the Supreme Court recognising that a properly founded preliminary objection serves as a procedural safeguard designed to conserve judicial time and resources by facilitating the early termination of legally untenable proceedings. It is their contention that the instant Petition falls within that category, being afflicted by fundamental and incurable legal defects that render continued litigation unwarranted. 16. Counsel further submits that the AIC-Kenya Constitution and its 2015 By-Laws provide a comprehensive internal dispute resolution framework for addressing ecclesiastical grievances. Reinforcing the policy justification for preliminary objections, the Respondents again draw attention to Supreme Court dicta to the effect that courts should not entertain matters that are fatally defective and amenable to early disposal. They maintain that the present Petition is beset by jurisdictional and procedural infirmities sufficient to warrant striking out at the threshold. 17. To fortify their position, the Respondents invoke the Court of Appeal’s holding in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, a church dispute in which the appellate court stated: “ It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the first port of call the moment a storm brews within churches, as is bound to happen.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17813/eng@2025-09-10 4

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18. The Respondents contend that this pronouncement aptly captures the present circumstances, arguing that disputes within religious organizations ought, as a matter of principle, to be addressed first through the internal mechanisms established for such purposes. They further submit that premature recourse to court over matters that could be addressed internally undermines the autonomy of religious bodies and violates the subsidiarity principle implicit in the Constitution. 19. The Respondents also rely on Susan Kalondu Ondumwanzui v Pastor John Ngumi & 23 Others [2018] KEHC 6468 (KLR), wherein the Court held: “ I have looked at the dispute resolution mechanism set out in the AIC-Kenya By-Laws (2015). In my view, it is comprehensive and adequate and should be given a chance. This is in line with the spirit and letter of the Constitution…that alternative dispute resolution mechanisms should be embraced.” They submit that the AIC-Kenya mechanisms are adequate and ought to have been pursued before resorting to constitutional litigation. 20. The Respondents further invoke Section 9(2) of the Fair Administrative Action Act, 2015, which bars judicial review where internal remedies have not been exhausted. Although acknowledging that the instant matter is a constitutional petition, they argue that the principle applies analogously, as the Petitioner challenges disciplinary actions governed by church rules that prescribe clear internal processes. They contend that the Petitioner’s subjective distrust of those mechanisms cannot excuse non-compliance with the statutory and jurisprudential exhaustion requirement. 21. The Respondents further rely on Geoffrey Muthinja (supra), as subsequently endorsed by the Supreme Court in Albert Chaurembo Mumba & 7 Others v Maurice Munyao & 148 Others (2019), in which the apex court affirmed the necessity of exhausting available internal dispute resolution mechanisms unless such mechanisms are incapable of providing effective relief. They assert that no such exception has been demonstrated in this case. 22. On that basis, the Respondents submit that this Court lacks jurisdiction, as the Petition is premature and constitutes an abuse of the court process. They argue that the exhaustion doctrine is a fundamental procedural requirement, and non-compliance renders the Petition incompetent and liable to be struck out at inception. 23. The Respondents invoke Section 3 of the Societies Act (Cap 108), which defines societies as unincorporated associations lacking corporate legal personality. They contend that the 2nd Respondent, being an unincorporated association, cannot be sued in its own name and that the proper defendants ought to have been the registered trustees or officials sued in a representative capacity. Reliance is placed on John Otteyo Amwayi & 2 Others v Rev. George Abuura & 2 Others (Civil Appeal No. 2339 of 1990) and Kipsiwo Community Self Help Group v Attorney General & 6 Others [2013] eKLR. They submit that the Petitioner’s belated attempt to amend the pleadings does not cure this fundamental defect. 24. The Respondents also highlight the misdescription of the 1st Respondent’s title within the Petition as further evidence of the Petitioner’s lack of diligence. While conceding that misnomer may be curable in appropriate circumstances, they argue that it exemplifies the broader deficiencies permeating the Petition. 25. It is the Respondents submission that the Petition is fundamentally flawed, incurably defective, and hopelessly misconceived. They accordingly urge this Honourable Court to uphold the Preliminary Objection and strike out the Petition in limine. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17813/eng@2025-09-10 5

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Analysis And Determination 26. Having considered the pleadings, affidavits, annexures, and submissions, the Court identifies the following issues for determination:1. Whether the Preliminary Objection, as raised by the Respondents, meets the doctrinal threshold of a proper preliminary objection. 27. The principles governing the determination of preliminary objections are well settled in Kenyan jurisprudence. In the oft-cited Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, Law J.A. explained that a preliminary objection consists of a pure point of law arising from the pleadings which, if successfully argued, is capable of disposing of the entire suit. 28. The Court in Oraro v Mbaja [2005] eKLR reaffirmed that a valid preliminary objection must not be entangled in contested factual matters requiring evidentiary interrogation. It must rest exclusively on a pure point of law whose determination may resolve the matter at the outset. 29. In the instant matter, the Respondents raise several objections, the central one being that the Petition is fatally defective for failure to exhaust the internal dispute resolution mechanisms provided under the Constitution and By-Laws of the Africa Inland Church-Kenya (AIC-Kenya). They submit that this failure deprives the Court of jurisdiction at this stage. 30. While the doctrine of exhaustion is firmly embedded in Kenyan law, it is not absolute. Courts have recognized exceptions where internal remedies are shown to be biased, inaccessible, or constitutionally infirm. However, such exceptions must be specifically pleaded and substantiated. 31. The Petitioner asserts that the internal mechanisms under the AIC-Kenya Constitution violate the principles of fair administrative action and natural justice. These allegations, however, are contested and raise factual questions unsuitable for determination on a preliminary objection. Their resolution requires a substantive evidentiary inquiry. 32. The Respondents also challenge the Petitioner’s locus standi on the basis that no documentary evidence of his membership in AIC-Kenya has been produced. The Petitioner, however, has pleaded membership and indicated that he brings the Petition both in his personal capacity and on behalf of others. As this averment has not been expressly controverted, it must at this stage be presumed true. Further, Article 22(2) of the Constitution confers broad standing in matters alleging violation of fundamental rights. Issues of proof of membership are therefore matters for trial rather than preliminary determination. 33. On the legal status of the 2nd Respondent, the Court agrees that AIC-Kenya, being an unincorporated association, lacks legal capacity to sue or be sued in its own name. The proper party should indeed be the registered trustees or duly authorized officials. Nonetheless, this is a defect that is amenable to cure by amendment. The Petitioner has already expressed willingness to amend and has filed an application for that purpose. There is no indication of prejudice to the Respondents. Accordingly, while the objection is sound in law, it is not fatal and does not justify striking out the entire Petition. 34. The misdescription of the 1st Respondent is a minor procedural irregularity. Rev. Abraham Mulwa was clearly identifiable, duly served, and has participated fully in the proceedings. Consistent with Order 1 Rule 9 of the Civil Procedure Rules and Article 159(2)(d) of the Constitution, such a defect does not warrant dismissal of a suit. 35. With respect to the 2nd Respondent, I reiterate that AIC-Kenya, as an unincorporated association, lacks capacity to be sued in its own name. Although this defect is curable by amendment, no such amendment had been effected at the time of this ruling. The Petition is therefore incompetent as against https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17813/eng@2025-09-10 6

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the 2nd Respondent. The misdescription of the 1st Respondent, however, is a curable defect and, as recognised in Central Bank of Kenya v Uhuru Highway Development Ltd [2015] eKLR, a misnomer is not fatal provided it is neither misleading nor prejudicial. The concerns regarding standing and evidentiary proof, while noted, do not warrant striking out the Petition but reflect a lack of diligence in its preparation. 36. Turning to the primary issue of jurisdiction, the Respondents contend that the Petition was prematurely instituted owing to the Petitioner’s failure to exhaust internal mechanisms established under the AIC-Kenya Constitution. The Petitioner concedes that he did not attempt to invoke those mechanisms but argues that they were unlikely to be fair or effective. 37. The doctrine of exhaustion is a cardinal principle of Kenyan administrative law. In Speaker of the National Assembly v James Njenga Karume [1992] eKLR, the Court of Appeal held that where the Constitution or a statute provides a dispute resolution procedure, that procedure must be followed. Subsequent jurisprudence has extended the principle to internal and contractual mechanisms, including those governing religious institutions. 38. In Geoffrey Muthinja Kabiru & Another v Samuel Muguna Henry & 1756 Others [2015] eKLR, the Court of Appeal reiterated that where an internal dispute resolution mechanism exists, it must be exhausted before resort is made to court. This serves to protect institutional autonomy and to prevent premature judicial intervention. 39. The AIC-Kenya Constitution and By-Laws annexed to both parties’ affidavits provide a detailed framework for internal dispute resolution. The Petitioner was aware of these provisions but elected not to utilize them. 40. The Petitioner’s apprehensions regarding fairness are speculative and unsubstantiated. He neither initiated the internal process nor demonstrated its inaccessibility, ineffectiveness, or bias. The Court cannot presume unfairness or futility where no attempt has been made to engage the prescribed mechanism. 41. As affirmed in Susan Kalondu Ondumwanzui v Pastor John Ngumi & 23 Others [2018] KEHC 6468 (KLR), dissatisfaction with or suspicion of internal processes does not suffice to displace the exhaustion requirement. The proper approach is to attempt the internal procedure and challenge any unfairness thereafter on the basis of an established factual record. 42. The Supreme Court in Albert Chaurembo Mumba & Others v Maurice Munyao & Others (2019) endorsed this principle, holding that even constitutional grievances may, in appropriate cases, be subjected to internal mechanisms unless exceptional circumstances are demonstrated. 43. The Petitioner has not established any exceptional circumstances. He has not shown that the internal forum was inaccessible, lacked jurisdiction, or was inherently biased. General dissatisfaction with the rules does not meet the legal threshold for exemption. 44. It is also pertinent that the matter pertains to ecclesiastical governance. Courts have historically exercised restraint in interfering with internal affairs of religious institutions except where clear illegality is shown. As reiterated in Geoffrey Muthinja (supra), courts should be fora of last resort in church disputes and must respect the autonomy of religious bodies unless internal processes have been exhausted. 45. In the circumstances, I find that the Petition was filed in contravention of the exhaustion doctrine and is therefore premature. As stated in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, jurisdiction is everything without it, the Court must down its tools. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17813/eng@2025-09-10 7

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46. In Susan Kalondu Ondumwanzui v AIC-Kenya (supra), the Court upheld the adequacy of the AICKenya internal mechanisms and struck out a similar petition for want of jurisdiction. The reasoning in that decision is persuasive and directly applicable here. 47. This Court accordingly aligns itself with the principles expressed in Susan Kalondu (supra) and urges the parties to pursue, in good faith, the internal reconciliation and adjudicatory mechanisms provided under the AIC-Kenya Constitution. For clarity, this dismissal does not constitute a determination on the merits of the Petitioner’s grievances. It reflects only that the Petition was prematurely instituted contrary to the exhaustion doctrine. 48. In the result, the Preliminary Objection dated 27th February 2025 is upheld. The Petition and Notice of Motion dated 10th February 2025 are hereby struck out in their entirety for want of jurisdiction. Orders A. The Preliminary Objection is allowed. B. The Petition and accompanying Application are hereby struck out. C. Each party shall bear its own costs of the Petition and the Preliminary Objection It is so ordered. File closed accordingly DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 10th DAY OF SEPTEMBER, 2025. ………………………………………………………………………….. BAHATI MWAMUYE MBS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/17813/eng@2025-09-10 8

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