https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12166

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAPENGURIA.** **PETITION NO. E001 OF 2026** **PETER LOITARENGAN ANGURAN ………………... 1ST PETITIONER** **SIMON APUTAA NGORIATUDO ………………….… 2ND PETITIONER** **ALEXANDER TOLIM TONYIRWO ……………….… 3RD PETITIONER** **-V E R S U S –** **KAPEL LOSIAKEL ……………………………….…... 1ST RESPONDENT** **LOSHANGURA AMEME …………………………..… 2ND RESPONDENT** **JULIUS MESKINA …………………………………….. 3RD RESPONDENT** **SIWARENG AMEME (***sued on behalf of* **DINI YA ROHO MAFUTA POLE YA AFRICA …….. 4TH RESPONDENT** **RULING NO. 1** 1. The Petitioners **Peter Loitarengan Anguran, Simion Aputaa Ngoriatudo and Alexander Tolim Tonyirwo** filed this petition dated 8/5/2026, against the Respondents, namely **Kapel Losiakel, Loshangura Ameme, Julius Meskina & Siwareng Ameme** sued on behalf of **Dini Ya Roho Mafuta Pole ya Africa** in which they seek several prayers including declarations, judicial review orders, order of injunction, general damages for alleged violation of the applicants’ Constitutional rights arising from disputes concerning their membership, leadership roles and participation in the affairs of their church. 2. The petition is brought pursuant to Articles 22,23,32,36,47,50 and 165 of the Constitution and Rules 23 and 24 of the Constitution (Protection of rights and Fundamental Freedoms) 3. Filed simultaneously with the petition is the Notice of Motion dated 8/5/2026 in which the petitioner/applicants seek the following orders 4. **Spent;** 5. **Spent;** 6. **That pending hearing and determination of this petition this court be pleased to issue a conservatory order restraining the Respondent their agents’, servants, followers or any other person acting under their authority from harassing, intimidating, threatening, assaulting, victimizing, evicting, ejecting, excluding or in any other manner interfering with the petitioner’s access to and worship at Dini ya Roho Mafuta Pole ya Africa church premises;** 7. **That pending the hearing and determination of this petition, the Honourable court be pleased to issue an order restraining the Respondents from interfering with the petitioners’ Constitutional rights to freedom of worship, association and human dignity and security of the person;** 8. **That the OCS Chepnyal Police Station do supervise compliance and provide security during church services pending hearing and determination of the application and petition;** 9. **That costs of the application be provided for.** 10. The application is supported by grounds found in the body of the application and the supporting and further Affidavits dated 8/5/2026 and 12/6/2026 respectively. 11. The applicants’ case is that they are lawful members of the subject church which is a registered religious organization, and are challenging the unlawful removal from leadership positions with the church and violation of their Constitutional rights; that since filing of this petition, the Respondents have subjected them to intimidation, harassment, threats and victimization; that they have been threatened with assault, excluded and denied access to the church premises and worship services because of their stand; that there is real apprehension of danger and injury to themselves and church members; that is why they want the court to intervene and issue conservatory orders. 12. The Respondents opposed the application by filing a replying affidavit sworn by Kapel Losiakel, the Chairman (Apostle Mkuu) of Dini ya Roho Mafuta Pole ya Africa (the church) who swore it on behalf of the other Respondents. He deponed that the application is full falsehoods, frivolous and activated by malice and half-truths, that the church operates under a hierarchical leadership structure consisting of Bomas, Zions and presided over by Apostle Mkuu which governs leadership, discipline and worship; that the church has more than a thousand (1000) Bomas, 85 Zions and over 100,000 faithful’s; that the allegations by applicants of harassment and victimization are untrue and that it is the 1st Petitioner who has resorted to physical violence for instance on 6/05/2026, he assaulted legitimate Mwalimu, one David Pkapol from the church and delegated to another to preside; that on 23/5/2026, again associated with applicants assaulted Tolis Mkuu Phinas Loshekel who was presiding over a church at Salam Boma and a report was made to Chenpnyal Police Post as per OB 22/5/2026 (K.L.2) 1. It is further contended the church has acted with restraint and made reports to the OCS and Chief K.L.3; that the applicants were lawfully demoted from their positions in church after their persistent involvement in insubordination and politics which are contrary to the church constitution; that the church has a disciplinary machinery i.e. verbal warning, then summons before disciplinary committee where the applicants appeared and after lengthy deliberations, they sought forgiveness, as per minutes of 3/3/2025; 2. Despite the forgiveness, the applicants teamed with the area MCA, disrupting the church’s activities; that warnings to the applicants have gone unheeded and on 30-31/12/2025, the petitioners were summoned to appear before the disciplinary committee where after deliberations, where allegations of insubordination, disobedience and political involvement were discussed, they were suspended for two (2) years as per minutes (KL.6); that the conduct of the applicants caused division and threatened the spiritual mission of the church; that the Respondents are lawfully elected officials of the church who are strictly carrying out their mandate; that this petition is an abuse of the court process and granting the orders sought would amount to shielding the applicants, unlawful conduct who were the aggressors. He urged the court to decline to grant the orders. 1. The Applicants in their further Affidavit paragraph 17 **Petitioner’s further affidavit** The deponent Peter Loitarengan Anguran specifically denied the allegations made by the Respondents that he assaulted or roughed up any person on 16th May 2026. He characterizes those allegations as wholly false and unsupported by evidence. According to him, had such a serious criminal offence occurred, it would have been reported to the police and supported by an Occurrence Book reference. He further maintained that it was the Respondents and their supporters who sought to create disorder within the church while he merely addressed congregants and encouraged them to maintain peace, order and decorum. He accused the Respondents of manufacturing allegations after the filing of the petition in an attempt to create a basis for justifying their actions against the Petitioners and portraying them as aggressors. 1. The deponent pointed out that the Respondents have expressly acknowledged in their replying affidavit that the applicants are members of the church; that this admission is significant because the applicant’s complaint is not based on denial of membership but rather on what they perceive as their unlawful, unfair and unconstitutional victimization, removal from leadership positions and exclusion from participation in church affairs. According to theappliants , the core grievance remains the manner in which disciplinary measures were imposed and decisions affecting their status within the church were made. 2. In response to allegations of violence contained in the replying affidavit, the deponent asserted that the Respondents have deliberately misrepresented the events; that it was actually a church leader who assaulted a congregant known as Emmanuel Komentany and not the applicants or their supporters. He stated that the Respondents have reversed the facts and blamed the applicants without conducting genuine investigations. That the accusations against the applicants remain unsubstantiated and unsupported by credible evidence. 3. The applicants also challenge the legality and fairness of the disciplinary process that led to their removal from leadership positions; that the alleged disciplinary proceedings, warnings and demotions were unlawful, irregular, null and void because they violated the principles of natural justice, fair administrative action and the right to a fair hearing; that the applicants were never issued with warning letters, disciplinary notices, summons or demotion letters and were never informed of the allegations facing them, that they were not accorded an opportunity to appear before any impartial disciplinary body to defend themselves; In their decisions affecting their positions and rights were made in their absence and, thereby rendering the disciplinary process a sham intended to eliminate those perceived as opponents of the existing church leadership and suppress dissenting opinions within the institution. 4. The deponent also disputed the Respondents’ claim that disciplinary meetings were held and that the applicants attended and sought forgiveness for misconduct. He states that the Petitioners are unaware of the alleged disciplinary meeting of 3rd March 2025 and deny ever receiving invitations, attending proceedings or participating in any disciplinary process; that the minutes relied upon by the Respondents are inaccurate and cannot be taken as proof that due process was followed. According to him, the allegations that the Petitioners appeared before disciplinary committees and received verbal warnings are entirely untrue. 5. On, allegations of political involvement, the deponent denied claims that they collaborated with a Member of County Assembly to interfere with or disrupt church affairs. He stated that no evidence has been produced to substantiate the accusations and contends that the repeated reference to political activity demonstrates that the actions taken against the Petitioners were politically motivated rather than founded upon legitimate disciplinary concerns. He argues that the introduction of political considerations into the dispute underscores the improper motives behind the Respondents’ actions. 6. He further observed that the Respondents have acknowledged that a second edition of the church constitution was introduced and the Petitioners were neither involved nor consulted in that process and maintains that the legality, validity and propriety of the constitutional review process, decision on governance, leadership and restructuring form part of the substantive issues pending before the Court for determination. 7. Regarding the Respondents’ assertions that they attempted to engage the Petitioners through internal dispute resolution channels, the deponent avers tht the applicants had on numerous occasions written to the Respondents raising grievances concerning their removal from leadership and treatment within the church. But despite receiving those communications, the Respondents maintained that they did not know the Petitioners and failed or refused to address their complaints. He therefore finds it contradictory for the Respondents now to claim that they had engaged the Petitioners or offered them meaningful opportunities to participate in internal church processes; that the applicants are unaware of any appeals mechanisms, disciplinary hearings, meetings or reconciliation processes referred to by the Respondents and that they never received invitations to any such proceedings. 8. The deponent challenged the authenticity and reliability of the invitation letters, WhatsApp messages, notices and minutes annexed by the Respondent; that none of those documents was ever served upon the Petitioners and notes that no acknowledgments of receipt, certificates of service, delivery records or other evidence of service have been produced; that the documents were generated merely to create the appearance that procedural fairness. 9. The incident involving the 3rd Petitioner, Alexander Tolim Tonyirwo was recounted; that on or about 9th May 2026, during a church gathering, the 3rd Petitioner was publicly humiliated and intimidated when his official church badge was forcibly removed in the presence of congregant; the act was deliberate and intended to embarrass him, diminish his standing within the church and communicate to other worshippers that the Petitioners no longer enjoyed recognition from church leadership. The Petitioners characterize the incident as part of a broader pattern of harassment, intimidation and victimization that followed the filing of the petition. They assert that the conduct was intended to instil fear, suppress dissent and discourage them from pursuing their grievances before the Court. In support of this allegation, photographs depicting the incident were annexed to the affidavit. In conclusion, the deponent asserts that the Respondents have instead of addressing the alleged violations of rights, unlawful demotions, victimization, discrimination and denial of a fair hearing, have resorted to political accusations and collateral matters designed to distract the Court from the real issues in controversy. The applicants therefore maintain that the dispute concerns violations of constitutional rights, lack of procedural fairness, breach of natural justice and the denial of due process in the decisions affecting their leadership positions and participation in church affairs 1. Directions were taken that the Notice of Motion be canvassed through written submissions. **Applicant’s Submissions** 1. Mr. Teti, Counsel for the applicants filed submissions dated 12/6/2026 in which he found four issues for determination, but I think the only issues for determination at this stage are that: 2. **Whether the applicant has established a prima facie constitution to warrant issuance of interim orders.** 3. **Whether conservatory orders can issue.** 4. Counsel submitted that the applicant has satisfied the threshold required in Constitutional petitions that one must plead with precision the rights allegedly violated and the manner in which they have been violated in line with the decision of **Anarita Karimi Njeru -V- Republic (No.1) 1979 KLR 154 and Mumo Nderu -V- Trusted Security of Human Rights Alliance & 5 others (2013) e KLR;** that the petition identifies the rights that have been violated i.e. removal from leadership positions, denial of participation in church offers, intimidation threats, infringement of right of association, human dignity and denial of right to fair administrative action; that they have demonstrated that they have a prima facie case hence the conservatory orders should issue. Counsel relied on the decision of **Centre for Rights to Education and Awareness (CREAW) and 7 others -V- Attorney General (2011) eKLR and Gatirau Peter Munya -V- Dickson Mwenda Githinji & 2 others (2014) eKLR.** Where it was held that one has to demonstrate a prima facie case and show that unless the orders are granted a real danger of prejudice will be suffered; 5. It was submitted the applicants are challenging the legality and constitutionality of the disciplinary process leading to their removal as they were condemned unheard and excluded form church affairs; that the Respondent admits that indeed they have some disciplinary proceedings undertaken; that as admitted by the Respondent’s there has been so much animosity between the parties and that is why there is apprehension that the petitioners will be excluded from church worship. 6. It was also submitted it is not denied that the applicants are members of the church and should not be excluded from the church premises and worship. Counsel urged the court to grant the orders sought. **Respondents’ Submissions.** 1. The firm of Katina Advocates filed submissions dated 12/6/2026 in which Counsel submitted that for conservatory orders to issue, one must demonstrate the principles espoused in **Gitarau Peter Munya (Supra)** as follows: - 2. That they have a prima facie case with a high probability of success; 3. That unless the orders are granted there is real danger of prejudice; 4. That public interest favours the grant of the orders 5. Whether the applicant has established a prima facia case, it was submitted that mere allegations of infringements of rights is not sufficient; that the Respondents in their affidavits have demonstrated how the applicants have conducted themselves resulting in physical confrontation and interference with peaceful enjoyment of freedom of worship and that resulted in police intervention; that the church internal mechanism for disciplinary dispute resolution were undertaken and despite the applicants seeking forgiveness and hearing, they continued to defy the church and engage in alleged actions which necessitated suspension from their positions for two (2) years; that the applicants are indirectly seeking orders of reinstatement which would amount to a mandatory injunction and would determine the petition; that the suspension from their positions does not undo them from exercising their freedom of worship; that the applicants have not disclosed any infringement of any rights. 6. Whether the applicants have demonstrated that they will suffer irreparable harm; Relying on the decision of **Martin Nyaga Wambora -V- Speaker of the County Assembly of Embu & 3 others (2014) eKLR** where the court said that an applicant needs to show more than apprehension or inconvenience, but may show real or imminent danger that requires immediate remedial redress; that the applicants have only been suspended which is reversible if they succeed in these and can be reinstated; that there is no evidence placed before court that this will suffer irreparable harm if a conservatory order is not issued. 7. As to where the balance of convenience tilts; it was submitted that reinstatement of the applicants will cause confusion in the church and that granting the orders amounts to interference in the running of the church because it has its own internal governance and administration mechanism in the church; that it would be in the best interest of the church if an order of status quo issues. 8. **Ndiwa Serebe,** the Counsel appearing along with Katina & Company Advocates for the Respondents, also filed submissions dated 24/6/2025. Counsel identified two issues, whether the applicants have reestablished that their constitutional rights have been infringed and whether the petitioners have established a prima facie case to warrant grant of conservatory orders. 9. Counsel relying on the case of **Anarita Karimi (Supra)** submitted that all the actions done by the Respondents against the applicants were lawful in accordance with the church constitution and do not amount to constitutional breaches. On the second issue, Counsel agreed with the other Counsel’s submission that if the court were to grant the orders, it would be interfering with the disciplinary decisions made by the Respondents and that the applicants have not demonstrated any imminent prejudice and the orders are not deserved. 10. I have duly considered the application, the affidavits in support and in opposition and the rival submissions. 11. No doubt both the applicants and the Respondent are members of the Dini ya Roho Mafuta Pole ya Africa. **Issues for determination** 1. **Whether the applicants have established a prima facie case;** 2. **Whether they have demonstrated a real danger of prejudice or violation of constitutional rights;** 3. **Whether, the Court should grant the conservatory orders or sought;** 4. **Where does the balance of convenience tilt and public interest?** 5. The issue falling for determination at this interlocutory stage is not whether the Petitioners were lawfully suspended from their leadership positions in Church. Neither is the Court called upon to determine whether the disciplinary process undertaken by the Respondents was proper or whether the allegations levelled against either party are true. Those are matters reserved for the substantive hearing of the petition. The Court is only required to determine whether the applicants have satisfied the threshold for the grant of conservatory orders pending the hearing and determination of the petition. 6. The applicable principles governing the grant of conservatory orders are now settled. In ***Munya v Kithinji & 2 others (Civil Appeal (Application) 38 of 2013) [2014] KECA 876 (KLR) (5 February 2014) (Ruling)*** and ***Dickson Mwenda Kithinji v Gatirau Peter Munya & 2 others [2013] KEHC 3041 (KLR)***, the courts held that an applicant must demonstrate a prima facie case with a likelihood of success, establish that there exists a real danger of prejudice or violation of constitutional rights if the orders are not granted, and satisfy the Court that the public interest favours preservation of the subject matter pending determination of the dispute. That the conservatory orders are only meant to preserve the petition 7. On whether the applicants have established a prima facie case, it is evident from the material placed before the Court that and there is no dispute that the applicants are members of the 4th Respondent church. There is equally no dispute that they previously held leadership positions within the church and that disciplinary processes were undertaken against them culminating in their suspension from office. The Respondents themselves acknowledge those facts. The contest is whether those disciplinary processes were conducted in accordance with the church constitution and the requirements of natural justice. While the Respondents maintain that the applicants were summoned, heard, warned and subsequently suspended after persistent misconduct, the applicants vehemently deny having been served with disciplinary notices, summoned before disciplinary organs or afforded any hearing before the adverse decisions were made against them. 8. The applicants further contend that they were condemned unheard, unlawfully removed from leadership positions, excluded from participation in church affairs and subjected to victimization and intimidation. They invoke Articles 27, 32, 36, 47 and 50 of the Constitution. Whether those allegations will ultimately be proved remains a matter for trial. However, at this interlocutory stage, the Court is only required to determine whether the petition raises arguable constitutional questions deserving judicial interrogation. In my view, allegations concerning denial of a fair hearing, denial of fair administrative action and alleged interference with rights of association and worship are not frivolous. They disclose genuine constitutional issues that warrant substantive examination by the Court. Consequently, I am satisfied that the applicants have established a prima facie case. 9. The next question is whether the applicants have demonstrated a real danger of prejudice if conservatory relief is withheld. The applicants depone that subsequent to their suspension and the filing of the petition, they have been subjected to threats, hostility, intimidation and exclusion. They also allege that the 3rd Petitioner was publicly humiliated when his official church badge was removed during a church gathering. Photographs were annexed to the further affidavit in support of that allegation though they are not clear. 10. Conversely, the Respondents deny any acts of victimization and maintain that it is the Petitioners who have been responsible for violence and disruption within the church. The Court is unable at this interlocutory stage to resolve those competing factual narratives. Nevertheless, what emerges from the affidavits filed by both sides is the existence of considerable animosity and deep-seated conflict between the parties. The Respondents have described the Petitioners as agitators, perpetrators of violence, insubordinate members and persons attempting to establish parallel leadership structures. On the other hand, the Petitioners accuse the Respondents of victimization, intimidation and unconstitutional conduct. In the **Wambora case at Paragraph 60**, the court said **“To those erudite words I would only highlight the importance of demonstration of ‘real danger’. The danger must be imminent and evidence, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the court’s attention.”** 11. The Court is satisfied that the relationship between the parties has become sufficiently strained to create a real apprehension of confrontation and further escalation pending hearing of the petition. 12. The Court must however carefully define the scope of any conservatory relief. A clear distinction must be drawn between membership of the church and leadership within the church. The pleadings reveal that the Petitioners challenge their suspension from leadership positions and the process by which that suspension was effected. However, the Court has not at this stage heard evidence sufficient to justify reinstatement to those positions. To grant orders whose effect would be to restore the applicants to leadership offices would amount to granting substantive relief before hearing the petition and would substantially determine contested factual issues that remain unresolved. 13. The Respondents expressly acknowledge that the applicants remain members of the church and added that they are free to worship without restraint. The constitutional rights invoked by the applicants include freedom of religion, freedom of worship and freedom of association. Pending determination of the legality of the disciplinary process, there is no basis upon which the applicants should be excluded from attending worship services solely because they have instituted these proceedings. The preservation of their ability to worship does not amount to reinstatement to church leadership but merely preserves the status quo and protects the constitutional rights claimed by the applicant’s pending determination of the petition. 14. The Court has also considered the competing public interests. On one hand is the need to protect constitutional rights and preserve the subject matter of the petition. On the other hand, is the need to respect the autonomy of religious organizations in the management of their internal affairs. The Court is persuaded that the appropriate balance lies in preserving the Petitioners' right to worship and associate as members while refraining from interfering with the church's leadership structures until the petition is heard and determined. Hopefully, such a course will minimize prejudice to both parties and foster peace and order pending determination of the petition. 15. As regards the prayer seeking continuous police supervision of church services, the material placed before the Court does not disclose circumstances warranting the routine deployment of police officers to supervise church activities. While allegations of hostility and confrontation have been made, that is an order that he granted because it is not possible for the court to order the police to guard the conduct of one particular church taking into account the shortage of police officers in the county. Nevertheless, nothing precludes the Officer Commanding Station from responding in the ordinary course of duty should the need arise. 16. For the foregoing reasons, I find that the Petitioners have established a prima facie constitutional case and demonstrated a sufficient basis for limited conservatory relief. The Notice of Motion dated 8th May 2026 is consequently allowed as follows: - 17. **Pending the hearing and determination of the petition, a conservatory order is hereby issued restraining the Respondents, their agents, servants, followers or persons acting under their authority from excluding, preventing or otherwise interfering with the Petitioners' access to and participation in worship services at Dini Ya Roho Mafuta Pole Ya Africa Church solely on account of the matters forming the subject of this petition.** 18. **Pending the hearing and determination of the petition, the Respondents shall not harass, intimidate, threaten or victimize the applicants in the exercise of their rights as members of the church.** 19. **For avoidance of doubt, the foregoing orders shall not operate as reinstatement of the Applicants to any leadership or administrative position within the church pending determination of the petition.** 20. **The prayer seeking police supervision of church services is declined.** 21. **Costs of the application shall abide the outcome of the petition.** **Dated, signed and delivered at Kapenguria this 31st July 2026.** **HON. R.P.V. WENDOH.** **JUDGE.** **In the presence of -** Mr. Teti for Applicants Ms. Sugut for respondent Mr Serebo for Respondent Ms. Cheboger for Respondent Court Assistants – Juma/Hellen.