[2019] KEHC 7398 (KLR)
The High Court found that once the subordinate court struck out the suit and vacated interim orders, it had no jurisdiction to issue further positive or declaratory orders affecting the rights of the parties or third parties who were not heard. Such orders were ultra vires and amounted to a determination of...
Source-derived case information.
- Citation
- [2019] KEHC 7398 (KLR)
- Parties
- Appellant: Rev. Benard Mogusu Obwocha; Appellant: Rev. Ronald Ombego Moracha; Appellant: Joseph Koringo; Respondent: Rev. James Ogendi; Respondent: Rev. Benard Ayieka
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Appeal Against Subordinate Court's Orders and Referral for Further Directions
- Outcome
- Appeal allowed; subordinate court's orders set aside; matter referred for further directions before a different magistrate; no order as to costs.
- Judges
- DAS Majanja
- Legal Topics
- Supervisory Jurisdiction, Striking Out Suit, Status Quo Orders, Alternative Dispute Resolution, Church Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rev. Benard Mogusu Obwocha
Appellant
Rev. Ronald Ombego Moracha
Appellant
Joseph Koringo
Appellant
Rev. James Ogendi
Respondent
Rev. Benard Ayieka
Respondent
Procedural Posture
Civil Appeal / Ruling on Appeal Against Subordinate Court's Orders and Referral for Further Directions
Legal Issues
- 1 Whether the subordinate court had jurisdiction to issue positive declaratory orders after striking out the suit.
- 2 Whether the High Court should exercise its supervisory jurisdiction to set aside the subordinate court's orders and refer the matter for alternative dispute resolution.
Ratio Decidendi
The High Court found that once the subordinate court struck out the suit and vacated interim orders, it had no jurisdiction to issue further positive or declaratory orders affecting the rights of the parties or third parties who were not heard. Such orders were ultra vires and amounted to a determination of substantive rights without due process. The High Court, exercising its supervisory jurisdiction under Article 165(6) of the Constitution, set aside the subordinate court's orders and referred the matter back for consideration of alternative dispute resolution mechanisms, emphasizing the need for proper procedure and fair hearing.
Court Disposition
Appeal allowed; subordinate court's orders set aside; matter referred for further directions before a different magistrate; no order as to costs.
Orders
- The order of the subordinate court dated 8th May 2019 is set aside.
- The matter is referred back to the subordinate court to determine suitability for alternative dispute resolution or mediation.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CORAM: D.S. MAJANJA J.
CIVIL APPEAL NO. 48 OF 2019
BETWEEN
REV. BENARD MOGUSU OBWOCHA................................1ST APPELLANT
REV. RONALD OMBEGO MORACHA..............................2ND APPELLANT
JOSEPH KORINGO...............................................................3RD APPELLANT
(Suing as pastors and ordinary members of PAG Kenya Church)
AND
REV. JAMES OGENDI ........................................................1ST RESPONDENT
REV. BENARD AYIEKA ....................................................2ND RESPONDENT
(Sued at Trustees of PAG Kenya Church)
(Being an appeal from the Ruling and Order of Hon. E.A. Obina, PM dated 8th May 2019 at the Magistrates Court in Kisii in Civil Case No. 156 of 2019)
RULING
1. As the parties rightly point out, this Court has supervisory jurisdiction under Article 165(6) of the Constitution and the High Court (Organisation and Administration) Act, 2015 to intervene in proceedings before the Subordinate Court notwithstanding that the appeal is incompetent.
2. The appellants appeal against an order of the subordinate court dated 8th May 2019 which provided as follows:
1. The ex-parte orders granted on 21st March 2019 (read 22nd March 2019) are hereby vacated in their entirety and anything done using and/or on the basis of the said orders is hereby declared null and void and the status quo before the institution of the suit is hereby restored.
2. All the election carried out using the court order issued on 21st March 2019 are hereby vacated and any person or persons elected by reason of the said order is hereby declared null and void and that all the person elected in 2014 be and are hereby restored and considered the legal elected members of the PAG Kenya Church and they shall continue discharging their duties as District overseers or Committee members or officers of the PAG Church as they were before the issuance of this court’s order dated 21st March 2019.
3. The ex-parte orders granted herein on 21st March 2019 are hereby vacated in their entirety.
4. The present suit be and is hereby struck out with costs to the Defendants for being an abuse of the Court process.
3. As is clear from the order I have set out above, apart from striking out the suit, the trial magistrate proceeded to make other orders that were in essence declarations yet the underlying claim had been dismissed. Once the suit was struck out and interim orders discharged, the court lacked jurisdiction to issue positive orders that amounted a determination of rights not only of the parties before it but also third parties who were not given the opportunity to be heard. That is why the parties agreed dispose of the appeal summarily by invoking this courts supervisory jurisdiction.
4. I therefore set aside the order of the subordinate court dated 8th May 2019. Given the nature of the matter and the fact that the underlying subject is a church dispute, I refer the matter back to the subordinate court to determine whether the case is suitable for alternative dispute resolution under Article 159(2)(c) of the Constitution or whether it falls within the cases referred to mediation by the High Court at Kakamega as preliminary issues in respect of the application dated 10th April 2019.
5. The parties shall appear before any other magistrate other than Hon. Obina, PM on 29th May 2019 for further directions and orders. For the avoidance of doubt there are no interim or other orders in force.
6. There shall be no order of costs of this appeal.
DATED and DELIVERED at KISII this 20th day of MAY 2019.
D.S. MAJANJA
JUDGE
Mr Begi instructed by Aboki Begi and Company Advocates for the appellants.
Mr Ondego and Mr Mokua instructed by Ondego Garo Advocates for the respondents.