[2019] KEELRC 1295 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI

PETITION NO. 93 OF 2019

IN THE MATTER OF: ARTICLE 22(1) OF THE CONSTITUTION 2010

AND

IN THE MATTER OF: CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLES 27(1) & (2), 28, 41(1) & (2) AND 48 OF THE CONSTITUTION OF KENYA 2010

AND

IN THE MATTER OF: SECTION 12 AND 41 OF THE EMPLOYMENT ACT, 2007

AND

IN THE MATTER OF: THE FAIR ADMINISTRATIVE ACTION ACT, 2015

BETWEEN

DAVID KARIUKI MUCHAI....................................PETITIONER

VERSUS

CHRISTIAN CHURCH INTERNATIONAL

REGISTEREED TRUSTEES.............................1st RESPONDENT

HENRY MULANDI............................................2nd RESPONDENT

JOHN KAUTI MATIVO.....................................3rd RESPONDENT

RULING

1. At all material times, David Kariuki Muchai (applicant) was serving as a Bishop, Diocese of Thika with the Christian Church International (1st Respondent).

2. On 7 September 2018, Bishop John Mativo (3rd Respondent) acting as Secretary General of the 1st Respondent wrote to the applicant to inform him that the National Administrative Council had decided that he be placed on sabbatical leave for 1 year. The reasons for and conditions of the leave were set out in the letter.

3. The applicant responded to the letter sending him on sabbatical leave on 21 September 2018 and indicated that because he had not requested for the leave, the action must have been informed by other considerations.

4. The applicant further decried in the response that he had not been afforded an opportunity to be heard before the decision to send him on sabbatical leave was taken.

5. It appears that the applicant did not abide with the conditions and terms of the sabbatical leave for on 21 February 2019, the 3rd Respondent issued to him a show cause notice calling upon him to explain why disciplinary action should not be taken against him allegedly for violating the terms of the sabbatical. The applicant was required to respond within 21 days.

6. The show cause reached the applicant after 21 days and in his response on 27 March 2019, he stated that he required the guidance of the Respondents considering the late receipt of the show cause. There was no response from the Respondents.

7. The applicant thereafter made a brief written response on 25 April 2019 in which he denied the accusations, and this was followed with a letter from the 3rd Respondent on 9 May 2019 informing him (applicant) that the National Executive Council had arrived at a decision to excommunicate him (applicant).

8. The excommunication prompted the applicant to file a Petition together with a motion under certificate of urgency on 3 June 2019 seeking orders

1. …

2. THAT the Honourable Court be pleased to issue an order of injunction against the Respondents either by themselves, agents, employees and/or servants from implementing the impugned decision of sending the Petitioner on sabbatical and/or excommunicating and/or expelling the Petitioner from office/employment as the Bishop of Diocese of Thika and Christian Church International, Ndunyu Chege including but not limited to repossessing of the 1st Respondent’s properties currently in the possession of the Petitioner/Applicant which includes the vehicle, minister’s license, marriage certificate book, ordination certificate, minister’s ID and any other property or document or preventing the Petitioner from accessing all the 1st Respondent’s churches, offices and learning institutions pending the hearing and determination of this application.

3. THAT the Honourable Court be pleased to issue an order of injunction against the Respondents either by themselves, agents, employees and/or servants from implementing the impugned decision of sending the Petitioner on sabbatical leave and/or excommunicating and/or expelling the Petitioner from office/employment as the Bishop of Diocese of Thika and Christian Church International, Ndunyu Chege including but not limited to repossessing of the 1st Respondent’s properties currently in the possession of the Petitioner/Applicant which includes the vehicle, ministers license, marriage certificate book, ordination certificate, ministers ID and any other property or document or preventing the Petitioner from accessing all the 1st Respondent’s churches, offices and learning institutions pending the hearing and determination of this Petition.

4. THAT the Honourable Court be pleased to issue an order compelling the Respondents to reinstate the Petitioner’s full salary and benefits with effect from May 2019 pending the hearing of this application.

5. THAT the Honourable Court be pleased to issue an order compelling the Respondents to reinstate the Petitioner’s full salary and benefits with effect from May 2019 pending the hearing of this application.

6. THAT the costs of this application be provided for.

9. When the application was placed before the Court ex-parte, it declined to grant any substantive order and lieu thereof, it directed that the application be served for inter-partes hearing on 11 June 2019.

10. The Respondents filed grounds of opposition and replying affidavit on the morning of the hearing.

11. The Court heard oral submissions from the parties and has also considered the application and the responses thereto.

12. The sequence of events leading to the excommunicationof the applicant are largely not in dispute.

13. It is also not in dispute that the applicant started his journey with the 1st Respondent through a letter of appointment (was not filed in Court) and was entitled to a salary and other benefits usually enjoyed in an ordinary employment relationship.

14. It is further not disputed that the 1st Respondent has a Constitution and By-Laws.

15. The question the Court needs to address in the circumstances is whether the facts as presented to the Court have met the legal threshold for grant of injunctive orders sought at an interlocutory stage. The principles applicable were set out long ago in the case of Giella v Cassman Brown & Co. Ltd. (1973) EA 338.

16. Excommunication has been defined in Black’s Law Dictionary (10th edition)

as Expulsion from a church or religious society, esp, as a formal sentence of censure pronounced by a spiritual court for an offence falling under ecclesiastical cognizance….

17. Black’s Online dictionary on its part defines excommunication as

A sentence of censure pronounced by one of the spiritual courts for offenses falling under ecclesiastical cognizance. It is described in the books as twofold: (1) The lesser excommunication, which is an ecclesiastical censure, excluding the party from the sacraments; (2) the greater, which excludes him from the company of all Christians. Formerly, too, an excommunicated man was under various civil disabilities. He could not serve upon juries, or be a witness in any court; neither could he bring an action to recover lands or money due to him. These penalties are abolished by St. 53 Geo. III. c. 127. 3 Steph. Comm. 721.

18. Article 3(c) of the 1st Respondent’s Constitution provides for excommunication where the conduct of a member has adversely affected the reputation or dignity of the church …. or conduct or character (which) do not conform to the right biblical teaching…

19. It is not clear to this Court at this stage whether the excommunication of the applicant (a church member and Minister of the 1st Respondent) is purely an ecclesiastical matter to which a Lord Temporal would assume jurisdiction (over a Lord Spiritual), or an employment relationship susceptible to civil jurisdiction.

20. This Court is of course aware that the Courts in this jurisdiction have previously assumed jurisdiction in near similar disputes (see Mbugua v Olang (1979) eKLR, Eliud Okiring & 2 Ors v Isaac Namango & Ar (1989) eKLR, JMM, JNG & PMW v Registered Trustees of the Anglican Church of Kenya (2016) eKLR, Silas Yego & 3 Ors v David Mulei Mbuvi & 5 Ors (2008) eKLR and Ephanuel Mugambi Muchiri v David R. Gathagu & Ar (2018) eKLR).

21. However, in the present case, the issue of excommunication has been directly thrust into litigation and it is not in dispute that the 1st Respondent’s Constitution envisages excommunication within defined parameters.

22. It cannot therefore be argued that the Respondents took a decision without constitutionalbacking.

23. The excommunication question, in the view of the Court, raise complex doctrinal/ecclesiastical interface with the review powers of the Courts, the right to religious liberty and contractual rights of the clergy.

24. As to what level of deferenceor latitude the Court should give to the decision of an ecclesiastical body, it is the take of the Court that question must await full arguments during the trial on the merits.

25. Considering that the Court is yet to hear the parties in any way on those issues and that excommunicationis available to the Respondents in terms of the operative Constitution, the Court will decline to allow the orders sought at this stage.

26. Costs to abide the Petition which should be progressed to a hearing and determination by the parties.

Delivered, dated and signed in Nairobi on this 21st day of June 2019.

Radido Stephen

Judge

Appearances

For applicant Mr. Kimani/Mr. Oguye instructed by Mwamuye, Kimathi & Kimani Advocates

For Respondents Mrs. Kalinga instructed by Kalinga & Co. Advocates

Court Assistant Lindsey