https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10333

African Orthodox Church of Kenya Diocese of Nairobi, Nairobi, Kenya & another v TAM (Suing as Mother and Next Friend of TV and TJC - Minors) (Civil Appeal E068 of 2025) [2026] KEHC 10333 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 10333 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E068 of 2025 AK Ithuku, J June 23, 2026 Between African Orthodox Church of Kenya Diocese of Nairobi, Nairobi, Kenya 1st Appellant Archbishop Makarios 2nd Appellant and TAM (Suing as Mother and Next Friend of TV and TJC - Minors) Respondent (Being an appeal from the Judgment/Decree of Hon. F.M. Rashid, Principal Magistrate, delivered on 24th February 2025 in Kisumu CMCC No. E234 of 2021) Judgment A. Introduction 1.This is an appeal from the judgment of Hon. F.M. Rashid, Principal Magistrate (“the trial court”), delivered on 24th February 2025 in Kisumu CMCC No. E234 of 2021, in which the trial court entered judgment in favour of the Respondent against the Appellants and ordered, inter alia, that the Appellants surrender possession of motor vehicle registration number KCG 770K, Toyota Surf, black in colour (“the suit motor vehicle”), to the Respondent, dismissed the Respondent’s claim for loss of user, and awarded the Respondent costs of the suit. 2.The 1st Appellant is a religious organisation registered and operating within the Republic of Kenya. The 2nd Appellant is the Archbishop of the 1st Appellant church. The Respondent sued in her capacity as mother and next friend of Teddy Valentine and Trevis Joseph Chrysostom, minors, and as administrator ad litem of the estate of the late Amos Masaba Akunda alias Bishop Athanasios (“the deceased”), pursuant to Limited Grant of Letters of Administration ad litem issued in Vihiga Succession Cause No. 207 of 2019. 3.Aggrieved by the trial court’s judgment, the Appellants preferred this appeal vide a Memorandum of Appeal dated 20th March 2025, setting out three grounds of appeal, which are reproduced below. B. Grounds Of Appeal 4The Appellants’ Memorandum of Appeal raises the following grounds:(a)That the learned Magistrate erred in law and in fact in failing to find that any property held by the deceased Bishop Amos Akunda is the property of the Church and cannot be bequeathed.(b)That the learned Magistrate erred in law and in fact by ordering the Appellants to surrender possession of motor vehicle registration number KCG 770K Toyota Surf, black in colour, to the Respondent.(c)That the learned Magistrate erred in law and in fact in awarding the Respondent costs of the suit. C. Background 4.The Respondent instituted suit against the Appellants vide a Plaint dated 23rd June 2021, averring that the deceased was, at all material times, the presiding Bishop in charge of the African Orthodox Church Diocese of Kisumu in Vihiga County, and was the sole registered owner of the suit motor vehicle. She averred that the deceased died on 4th January 2019, while in the United States of America on official church duties, leaving the suit motor vehicle in her possession; that during the period of mourning, the 2nd Appellant requested to use the suit motor vehicle for his return trip to Nairobi after the burial, on a promise to return it to the Respondent; and that despite demand, the Appellants have since January 2019 failed and/or refused to return the suit motor vehicle, occasioning her loss of user. 5.The Respondent sought, inter alia, an order that the Appellants surrender possession of the suit motor vehicle, damages for loss of user from January 2019 until surrender, and costs of the suit. 6.The Appellants did not enter appearance or file a defence within time, and the matter proceeded to formal proof. The Respondent testified as PW1, and called Carolyn Anyango (PW2), her elder sister, and Josephat Akunda Lwabi (PW3), the deceased’s father. The trial court thereafter set aside the formal proof judgment on the Appellants’ application, status quo orders were issued pending hearing, and the suit proceeded on its merits, the Appellants having since entered appearance and filed a Statement of Defence dated 10th September 2024. 7.In their Statement of Defence, the Appellants denied that the deceased had any biological children, contending that under the Canonical Law of the Orthodox Church, only celibate members may be ordained Bishop; that the deceased was so ordained on 27th June 1997 and consecrated Bishop in 2015 or 2016; that the Pope and Patriarch of the Orthodox Church, Theodoros II, gifted the deceased €15,000 to purchase a motor vehicle for his ministry; and that, under Canonical Law, any property acquired by a Bishop in that capacity belongs to the Diocese and remains church property at all times. The Appellants accordingly pleaded that the suit motor vehicle was, and remains, the property of the 1st Appellant church. 8.At the resumed hearing, the Respondent (PW1) adopted her witness statement and produced as exhibits, among other documents, the Limited Grant of Letters of Administration ad litem, a copy of search of the suit motor vehicle, birth certificates of the two minors naming the deceased as their father, and a letter dated 15th February 2019. PW2 and PW3 testified in similar terms, PW3 additionally confirming that the deceased owned two motor vehicles, a white one and the suit black Toyota Surf, both kept at his (PW3’s) compound. 9.The Appellants called one witness, Father Makarios Ngugi (DW1), the 2nd Appellant, who adopted his witness statement and produced a bundle of documents, including a letter from the Pope and Patriarch Theodoros II, the deceased’s petition for ordination, and motor vehicle records. Under cross-examination, DW1 conceded that he held no resolution from the church trustees authorising him to testify on the church’s behalf; that he had no documentary proof that the €15,000 referred to in the petition for ordination was given for purposes of purchasing the suit motor vehicle, the document making no such mention; that the suit motor vehicle was registered in the deceased’s personal name and not in the name of the church; that he had no sale agreement or other proof that the deceased purchased the vehicle as Bishop, or that he was ever obliged or had begun to transfer it to the church; and that he had no police abstract in proof of the alleged accident relied upon by the Appellants. D. Findings Of The Trial Court 10.The trial court identified the sole issue for determination as whether the suit motor vehicle belonged to the deceased or to the Appellants. The trial court found that the motor vehicle search from the National Transport and Safety Authority (NTSA) established that the suit motor vehicle was registered in the personal name of the deceased, Amos Masaba Akunda, and not in the name of the 1st Appellant church; that it is common practice for church property to be registered in the name of the church, which did not occur in this instance; that the Appellants had failed to produce a sale agreement, transfer documents, or any other proof that the vehicle was acquired by the deceased on behalf of the church or was ever intended to pass, or did pass, to the church; and that DW1’s own evidence undermined the Appellants’ case in material respects, including his admission that he had no proof linking the €15,000 gift to the purchase of the suit motor vehicle. 11.The trial court further held that whatever may be said of the Canonical Law of the Church regarding the personal property of clergy, the deceased was not registered as a Bishop acting in a representative or trust capacity in respect of the suit motor vehicle, and that, in any event, it is not uncommon for clergy bound by vows to nonetheless deviate from them, a matter which does not, of itself, displace legal ownership absent proof of an act of transfer to the church. 12.On the claim for loss of user, the trial court held that this was a claim in the nature of special damages requiring specific pleading and strict proof, and that the Respondent had failed to produce receipts or other evidence of the amounts she had been forced to spend on alternative means of transport for the children, citing Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716. The trial court accordingly disallowed the claim for loss of user. The trial court entered judgment for the Respondent, ordering the Appellants to surrender possession of the suit motor vehicle to the Respondent within thirty (30) days, disallowed the claim for loss of user, and awarded the Respondent costs of the suit. E. The Duty Of This Court 13.This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence adduced before the trial court, both on points of law and fact, and to arrive at its own independent conclusions, bearing always in mind that, unlike the trial court, it neither saw nor heard the witnesses testify, and making due allowance in that respect (Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123). This Court will not ordinarily interfere with the trial court’s findings of fact unless they are shown to be based on no evidence at all, or on a misapprehension of the evidence, or it is demonstrated that the trial court acted on wrong principles in reaching them (Mwanasokoni v Kenya Bus Service Ltd (1982–88) 1 KLR 278). 14.With that duty in mind, this Court has carefully re-evaluated the entire record of appeal, including the pleadings, the proceedings, the exhibits produced by both parties, the trial court’s judgment, and the rival written submissions filed by counsel. F. Analysis And Determination 15.Grounds (a) and (b): Ownership of the suit motor vehicle and the order for surrender 16.Grounds (a) and (b) of the Memorandum of Appeal are interrelated and are accordingly considered together. The central question is whether the trial court erred in finding that the suit motor vehicle was not church property, and in consequently ordering its surrender to the Respondent. 17.It is common ground that the suit motor vehicle, registration number KCG 770K, was, at all material times, registered in the personal name of the deceased, Amos Masaba Akunda, and not in the name of the 1st Appellant church. This is borne out by the NTSA motor vehicle copy of records produced before the trial court, and was conceded by DW1 in cross-examination. 18.Section 8 of the Traffic Act (Cap 403) provides that the person in whose name a motor vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of that vehicle. Registration in a person’s name is therefore prima facie evidence of ownership, which evidence may be displaced by other evidence demonstrating that the registered owner had divested himself of ownership in favour of another (Jared Magwaro Bundi & Another v Primarosa Flowers Limited [2018] eKLR). The burden of displacing that prima facie position lay squarely on the Appellants, who asserted that, notwithstanding registration in the deceased’s personal name, beneficial and legal ownership at all times resided in the church (Section 107, Evidence Act, Cap 80; Karugi & Another v Kabiya & 3 Others [1987] KLR 347, where it was held that the burden of proof on a party asserting a fact remains on that party throughout the case). 19.Having re-evaluated the record, this Court is satisfied that the Appellants did not discharge that burden. DW1, the Appellants’ sole witness, conceded that he had no sale agreement evidencing that the deceased purchased the suit motor vehicle as Bishop, or on behalf of the church; no document evidencing that the €15,000 referred to in the petition for ordination was given for the specific purpose of purchasing the suit motor vehicle, a fact the document itself, on his own evidence, does not state; no resolution of the church trustees authorising him to assert the church’s claim to the vehicle; and no evidence that the deceased ever took any step, or was required to take any step, to transfer the suit motor vehicle into the name of the church. DW1 further conceded that it is common practice for church property to be registered in the name of the church, a practice that was, on the evidence, not followed in respect of the suit motor vehicle. 20.The Appellants’ case rested substantially on the proposition that, under the Canonical Law of the Orthodox Church, any property acquired by an ordained Bishop belongs to the Diocese as a matter of course, regardless of how that property is registered or held. Even taking the Appellants’ evidence on Canonical Law at its highest, an internal rule of a religious institution governing the propriety of clergy holding personal property cannot, without more, override the legal incidents of registered ownership as against third parties, absent proof of an actual and completed act of transfer recognised at law. No such proof was tendered. The evidence of PW3, the deceased’s father, that the deceased had two motor vehicles in his use, and that both were treated as his own, was not displaced. 21.This Court further notes, as did the trial court, that it is not disputed that the deceased fathered the two minors on whose behalf the Respondent sues, this being established by the birth certificates produced and not having been seriously controverted by the Appellants in their evidence, DW1 himself conceding that some Bishops have children notwithstanding vows of celibacy. While the propriety of the deceased’s personal conduct as a cleric bound by vows of celibacy is not a matter for determination by this Court, the existence of the deceased’s family is relevant background to the Respondent’s standing as administrator of his estate, which standing has not been challenged on this appeal. 22.In the result, this Court finds no basis to disturb the trial court’s finding that the suit motor vehicle was, and remains, the personal property of the deceased’s estate, and not the property of the 1st Appellant church. The trial court’s finding was not based on no evidence, nor on a misapprehension of the evidence, nor on wrong principles; if anything, a fresh and independent evaluation of the record by this Court leads to the same conclusion. It follows that the order for surrender of possession of the suit motor vehicle to the Respondent, as administrator of the deceased’s estate, was correctly made. Grounds(a) and (b) of the appeal accordingly fail.Ground (c): Costs of the suit 23.It is trite that costs follow the event, and that an award of costs lies within the discretion of the trial court, with which an appellate court will not interfere unless it is shown that the discretion was exercised injudiciously, on wrong principles, or that the trial court took into account irrelevant matters or failed to take into account relevant matters. The Respondent having substantially succeeded in her claim before the trial court, no basis has been demonstrated by the Appellants for disturbing the trial court’s exercise of discretion in awarding her costs of the suit. Ground (c) of the appeal accordingly fails.The claim for loss of user 24.For completeness, this Court notes that the trial court disallowed the Respondent’s claim for loss of user, correctly holding, by reference to Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, that such a claim, being in the nature of special damages, required specific pleading and strict proof, which was not furnished. That finding was made in the Appellants’ favour, has not been the subject of any cross-appeal by the Respondent, and is accordingly not disturbed. G. Disposition 25.For the foregoing reasons, this Court finds no merit in the appeal. The upshot is as follows:(a)The appeal is hereby dismissed in its entirety.(b)The judgment and decree of the trial court delivered on 24th February 2025 in Kisumu CMCC No. E234 of 2021 is hereby upheld.(c)The Appellants shall bear the costs of this appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JUNE 2026..................................................HON. ALEX ITHUKUJUDGEIn the presence of:Ms. Waitai for the AppellantsMr. Gwada for the RespondentAnn Court Assistant