Yego & 10 others v Siteinei & 5 others (Petition E023 of 2022) [2026] KEHC 13182 (KLR) (31 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT ELDORET** **CONSTITUTIONAL AND HUMAN RIGHTS PETITION** **PETITION NO. E023 OF 2022** **ROBERT KIPLIMO YEGO……………………………………………….1ST PETITIONER** **SAMWEL OSORE SABOKE (ASSISTANT BISHOP)………..……..2ND PETITIONER** **NATHAN KIPTOGOM LAGAT (SENIOR PASTOR.....................3RD PETITIONER** **SILA KIPLETING YATOR (SENIOR PASTOR) ........................ 4TH PETITIONER** **JEREMIAH KIMORI KIMORI (PASTOR).................................5TH PETITIONER** **NASHON OCHENGO OMBATI (PASTOR)................................6TH PETITIONER** **JOHNSON OMBEO MOYWAYWA (PASTOR)............................7TH PETITIONER** **EDWIN KIPLETING LELEY (PASTOR)....................................8TH PETITIONER** **SILAS KIPKOECH BIRGEN (TRUSTEE).................................9TH PETITIONER** **JOEL KIPROTICH KEINO (MEMBER)..................................10TH PETITIONER** **JONAS CHEKIBEI LAGAT(MEMBER)...................................11TH PETITIONER** **VERSUS** **DAVID MOSES SITEINEI (BISHOP)......................................1ST RESPONDENT** **ZACHARAY NTABO (SECRETARY GENERAL).......................2ND RESPONDENT** **STEPHEN CHERUIYOT LANGAT (NATIONAL TREASURY)....3RD RESPONDENT** **ALBERT ONKOBA (NATIONAL RIGISTRAR) ........................4TH RESPONDENT** **JAMES KOGO....................................................................5TH RESPONDENT** **PEACE AND MERCY CHURCH OF AFRICA (PMCA)..............6TH RESPONDENT** **Coram: Before Justice R. Nyakundi** **M/S Isiaho Sawe & Co. Advocates** **M/S Kipsamo & Co. Advocates** **JUDGMENT** *(On the Notice of Preliminary Objection dated 13th February 2026)* # **A. INTRODUCTION** 1. Before me for determination is the Notice of Preliminary Objection dated 13th February 2026, filed by the Respondents through M/s Kipsamo & Company Advocates, by which the Respondents challenge the competence of the Notice of Motion dated 21st January 2026 and pray that it be struck out with costs. 2. The background, so far as it is common ground on the record, is short. This Petition was, by an order of this Court dated 16th February 2023, referred to arbitration pursuant to the dispute resolution machinery contained in the Constitution of the Peace and Mercy Church of Africa, 2004. The reference came before the Hon. Wilson K. Kalya, sole arbitrator, and was registered as Arbitral Dispute No. 2 of 2023 on a Statement of Claim dated 20th December 2023. The arbitrator delivered his award on 16th June 2025. 3. By an application dated 17th July 2025 the Petitioners moved this Court for adoption of the award. On 8th August 2025 the Court adopted the arbitral award. 4. It is the Petitioners’ case that thereafter an amended Constitution of the Church was lodged by the Respondents with the Registrar of Societies on 18th August 2025 and approved on 15th September 2025, and that those who lodged it lacked the capacity to do so. 5. By the Notice of Motion dated 21st January 2026 the Petitioners/Applicants seek a stay of implementation of that amended Constitution pending the review, clarification and/or interpretation of the arbitral award of 16th June 2025 by the arbitrator. 6. The Respondents oppose the application. They have filed a Replying Affidavit dated 13th February 2026 and, of even date, the Notice of Preliminary Objection now before me. Written submissions in support of the objection, dated 6th March 2026, were filed by M/s Kipsamo & Company Advocates. The Petitioners/Applicants filed submissions dated 7th April 2026 through M/s Isiaho Sawe & Company Advocates, addressing both the application and the objection. 7. The objection goes to jurisdiction. It must therefore be disposed of before the merits of the application are approached at all. As Nyarangi JA put it in *Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR); [1989] KLR* *1*, a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide it right away on the material before it; jurisdiction is everything, and without it a Court has no power to make one more step. I accordingly confine this Ruling to the preliminary objection. 8. I record one matter of housekeeping before going further. The Respondents’ written submissions repeatedly frame the issue as whether the Court has jurisdiction to determine "the application dated 13th February, 2026." There is no such application. The 13th of February 2026 is the date of the Notice of Preliminary Objection itself; the application under challenge is dated 21st January 2026, as Ground 1 of the Notice correctly states. The slip is obvious, no party was misled by it, and I proceed on the substance. # **B. THE PRELIMINARY OBJECTION** 1. The Notice of Preliminary Objection is founded on four grounds, namely: 1. That this Court lacks jurisdiction to entertain the application dated 21st January 2026 for being functus officio; 2. That the application is frivolous, vexatious and an abuse of the process of the Court; 3. That the application is self-defeating and a waste of the precious time of the Court; and 4. That the application should be struck out with costs to the Respondents. # **C. SUMMARY OF THE SUBMISSIONS** ## ***For the Respondents*** 1. Counsel began with the settled test for a preliminary objection laid down in *Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd* [1969] EA 696, citing both the formulation of Law JA and that of Sir Charles Newbold P, and submitted that an objection to the jurisdiction of the Court is the paradigm case of a point properly taken in limine. 2. On jurisdiction, reliance was placed on *Lillian S* (supra) for the proposition that a Court without jurisdiction must down its tools. 3. The substance of the objection was put on a chronology said to be undisputed: that the matter was referred to arbitration by order of 16th February 2023; that a Statement of Claim dated 20th December 2023 was filed and registered as Arbitral Dispute No. 2 of 2023; that the arbitrator issued his award on 16th June 2025; that by an application dated 17th July 2025 the Petitioners sought adoption of the award; that the Court adopted it on 8th August 2025; that the award has since been implemented, culminating in the amended Constitution of 2025; and that the amended Constitution was approved by the Registrar and the Respondents permitted to operationalize it by a letter dated 15th September 2025. 4. From that chronology Counsel submitted that, the award having issued, having been adopted by this Court and having been implemented, the Court is *functus officio* and the prayers sought cannot issue. 5. It was further submitted that clarification or correction of an award may only be sought from the arbitrator, in writing, within thirty days of receipt of the award, and that those timelines having lapsed the application is an attempt to circumvent Section 34 of the Arbitration Act. Counsel added that the Petitioners, having participated in the amendments ordered by the arbitrator, cannot now be heard to say that the award was implemented by strangers whom they have not identified, and that the application is a veiled and impermissible challenge to the validity of the award contrary to Section 35 ofthe Arbitration Act. Litigation, it was urged, must come to an end. ## ***For the Petitioners/Applicants*** 1. Counsel’s answer to the objection is compact and may be stated in a sentence: the application does not seek to change the decision of the arbitrator but only to seek clarification and/or interpretation of it in order to facilitate its execution, and the Court cannot therefore be *functus officio*. 2. On the source of the power invoked, reliance was placed on Section 35(4) of the Arbitration Act, which Counsel submitted "donates to this Court the discretion and/or powers to remit a matter back to the Arbitrator for further directions as obtains in the current circumstances." It was further submitted that an arbitrator is empowered by law to interpret a specific point or part of an award, or to correct any clerical, typographical or computation error, and that the Court may accordingly refer the application to the arbitrator, who is legally empowered to grant the orders sought. 3. On the merits of the underlying grievance, which I record only for completeness, the Applicants say that there is an error apparent on the face of the award in that the 6th Respondent was sued in its personal capacity rather than through its trustees or officials; that the offices of the Church’s officials were vacant at the material time by reason of retirement, non-replacement and the expunging of the 2022 Constitution; that the persons who lodged the 2025 Constitution were therefore not officials on the records of the Registrar of Societies; and that the Registrar advised that an interpretation of the award was needed to establish who is legally mandated to implement it. # **D. ISSUES FOR DETERMINATION** 1. Having considered the Notice of Preliminary Objection, the submissions of both parties and the record, the issues for determination are: 2. Whether the objection, or any part of it, qualifies as a preliminary objection properly so called; 3. Whether this Court is *functus officio* and therefore without jurisdiction to entertain the Notice of Motion dated 21st January 2026; 4. Whether, in any event, there exists a jurisdiction to remit the award to the arbitrator for review, clarification or interpretation at this stage; and 5. What orders, and what disposition as to costs, are appropriate. # **E. ANALYSIS AND DETERMINATION** # It is trite law that in Kenya’s legal system High Courts cannot review all re-examined the merits of an arbitral award and can only interfere or set aside based on the strict limited grounds under Section 35 and 36 of the Arbitration Act. This therefore means there is no merit review of arbitral award and Courts do sit as an appellant body to review evidence or factual or legal errors made by an Arbitrator. # ***(i) Whether the objection is a preliminary objection properly so called*** 1. Although neither party addressed this threshold question, it is one the Court must satisfy itself upon before entertaining an objection taken in limine. In *Mukisa Biscuit* (supra) Law JA said that a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit - giving as his first example an objection to the jurisdiction of the Court. Sir Charles Newbold P added that such an objection is in the nature of a demurrer: it raises a pure point of law argued on the assumption that all the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. His Lordship went on to deprecate, in terms, the improper raising of points by way of preliminary objection. The same test was applied by Ojwang J (as he then was) in *Oraro v Mbaja* [2005] 1 KLR 141. 2. Ground 1 satisfies that test. The facts on which it rests are matters of this Court’s own record - the referral order of 16th February 2023, the award of 16th June 2025, and the adoption of that award on 8th August 2025. None of them is disputed; indeed the Applicants’ own submissions recite the award and its date and proceed on the footing that it stands. Whether, on those facts, the Court retains jurisdiction is a question of law and nothing else. 3. Grounds 2 and 3 do not satisfy it. To say that an application is "frivolous, vexatious and an abuse of the Court process," or that it is "self-defeating and a waste of precious time of the Court," is to invite the Court to evaluate the merit of the application and to exercise a discretion. That is precisely what Newbold P said a preliminary objection cannot do. Those grounds are also, on this record, entangled with contested facts - in particular the assertion that the award "has been fully implemented" and that "the Petitioners participated fully in the process," both of which the Applicants squarely dispute. Grounds 2 and 3 are accordingly struck out from the objection. 4. Ground 4 is not a ground at all but a prayer, and falls to be dealt with as part of the disposition. 5. The objection therefore stands or falls on Ground 1, to which I now turn. ## ***(ii) The statutory framework: the limits of curial intervention*** 1. Because the application seeks to move this Court to act in relation to an arbitral award, the starting point must be the Arbitration Act, No. 4 of 1995. Four provisions govern the analysis. 2. First, Section 10 provides that except as provided in the Act, no Court shall intervene in matters governed by the Act. The provision is not hortatory; it is a statutory closure of the field. Any jurisdiction this Court exercises over an arbitral award must be found within the four corners of the Act. 3. Second, Section 32A provides that except as otherwise agreed by the parties, an arbitral award is final and binding upon the parties, and no recourse is available against the award otherwise than in the manner provided by the Act. 4. Third, Section 33(3) provides that, subject to Sections 34 and 35, the mandate of the arbitral tribunal terminates upon the termination of the arbitral proceedings. The arbitrator, no less than this Court, becomes *functus officio* upon delivering his final award, save to the limited extent that Sections 34 and 35 preserve his mandate. Essentially, Section 35 confers the High Court powers to set aside an arbitral award under the circumstances provided under that provision. Section 35(1) is to the effect that recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under sub Sections (2) and (3). This implies that the Court will not act in such matters unless a discontented party invites it to do so. Sub Section (2) sets out the grounds upon which the High Court will set aside an arbitral award. The grounds which the applicant must furnish proof for the arbitral award to be set aside are: incapacity of one of the parties; an invalid arbitration agreement; Lack of proper notice on the appointment of arbitrator, or of the arbitral proceedings or where the applicant was unable to present its case; where the award deals with a dispute not contemplated by or one outside the terms of reference to arbitration or matters beyond the scope of reference; where the composition of the arbitral tribunal or the arbitral procedure was contrary to the agreement of the parties except where such agreement was in conflict with provisions of the Act and the parties cannot derogate from such; or where fraud, undue influence or corruption affected the making of the award. 5. Fourth, Section 36 provides for recognition and enforcement: a domestic arbitral award is recognized as binding and, upon application in writing to the High Court, is enforced subject to that Section and Section 37. 6. The consistent thread of the authorities is that the Court’s role in arbitration is a narrow and defined one, and that it has no residual or inherent jurisdiction to be exercised outside the statutory scheme. In *Anne Mumbi Hinga v Victoria Njoki Gathara* [2009] eKLR the Court of Appeal held that there is no right of appeal against the recognition and enforcement of an award save as provided in the Act, and that a Court has no residual jurisdiction to interfere with an award outside the Act. The Supreme Court has since underscored the principle of minimal curial intervention and the finality of awards in *Nyutu Agrovet Limited v Airtel Networks Kenya Limited* [2019] eKLR and *Synergy Industrial Credit Limited v Cape Holdings Limited* [2019] eKLR. Parties who choose arbitration choose finality; they cannot have the speed and privacy of the arbitral process and, when the outcome disappoints, the full supervisory apparatus of the Courts as well. ## ***(iii) Whether the Court is functus officio*** 1. The doctrine of *functus officio* expresses a simple proposition: a decision-maker who has discharged the function entrusted to him has no power to revisit it. Its rationale is the public interest in finality. Its application is not absolute — a Court retains power to correct a clerical or arithmetical slip, to enforce and execute its own decree, and to entertain a properly constituted application for review — but outside those recognized exceptions the Court’s seisin of the matter is spent. Therefore, a Court or Tribunal becomes *functus officio* as soon as it issues final judgment, final order or final award on the merits of the case and in my view it excludes matters to do with exaction and enforcement of the judgment issued by the same Court. In this sense, the principle of legality is maintained in ensuring the functionaries do not exercise more power than they have. This statement applies to the Courts too for the principles of legality and finality are both inexorable aspects of the rule of law in our legal system. 2. Applying that here, the position is as follows. The Petition was referred to arbitration in February 2023. The reference was determined by the award of 16th June 2025. On the Petitioners’ own application, the award was adopted by this Court on 8th August 2025, which is to say it was recognized and enforced under Section 36 of the Act. No application to set aside was made under Section 35, and none is pending. Upon adoption, the Court’s adjudicative function in this Petition was discharged. 3. I am conscious that this cannot be the end of the analysis, because the Applicants do not in terms ask the Court to re-determine the dispute. They ask it to do two things: to stay the implementation of the amended Constitution, and to send the award back to the arbitrator for review, clarification and/or interpretation. The second of those is the substantive relief; the first is expressly interlocutory to it. I therefore turn to whether the substantive relief is one this Court has power to grant. ## ***(iv) Whether the award may now be remitted for review, clarification or interpretation*** 1. The Applicants are right that the power to interpret an award, or to correct clerical, typographical or computation errors in it, exists. Their difficulty is that it is not this Court’s power, and it is now spent. That power is conferred by Section 34 of the Arbitration Act, and it is conferred on the arbitral tribunal, subject to conditions which are not satisfied here. 2. Hence, under Section 34, a request for correction must be made to the arbitral tribunal, with notice to the other party, within thirty days of receipt of the award, unless the parties have agreed a different period; the tribunal may make such a correction on its own initiative within the same thirty days; and a request for the interpretation of a specific point or part of the award may be made only if the parties have so agreed. 3. This measured against those requirements, the application fails at every step. The award was delivered on 16th June 2025; the thirty-day window closed in or about mid-July 2025. The application before me is dated 21st January 2026 — more than seven months out of time. No agreement of the parties extending that period is pleaded. No agreement of the parties permitting a request for interpretation, as Section 34 requires, is pleaded either. Critically, no request of any kind was ever made to the arbitrator; what is asked is that this Court should send the matter to him. Section 34 confers no such power on the Court. The arbitrator’s mandate having terminated under Section 33(3), and neither Section 34 nor Section 35 operating to preserve it, he is himself *functus officio*. 4. That leaves Section 35(4), on which the Applicants place their whole weight. With respect, the subsection has been misread. It provides that the High Court, *when required to set aside an arbitral award*, may, where appropriate and if so requested by a party, suspend the setting-aside proceedings for such period as it determines, in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as will, in the tribunal’s opinion, eliminate the grounds for setting aside. 5. Three things follow. The power is not free-standing: it is exercisable only within, and for the purposes of, proceedings to set aside an award under Section 35. There are no such proceedings here, and there can now be none, since Section 35(3) bars a setting-aside application made more than three months after receipt of the award — a period which expired in or about mid-September 2025. Further, the power is not one of "remission" at all; what Section 35(4) permits is a suspension of the setting-aside proceedings so that the tribunal may act of its own motion. It is not a vehicle by which a party who has allowed the statutory timelines to pass may reopen a concluded reference. 6. As for "review" of an award, the expression appears in the Applicants’ prayer but has no anchor in the Arbitration Act. The Act knows of correction, interpretation and additional awards under Section 34; of setting aside under Section 35; and of recognition, enforcement and refusal of enforcement under Sections 36 and 37. It knows of no review. Section 10 forecloses the invention of one. 7. It also true that the alleged error cannot be squeezed into Section 34(1). The complaint is that the 6th Respondent was sued in its personal capacity rather than through its trustees or officials. Whatever its force, that is not a clerical, typographical or computation error. It is a complaint about how a party was joined and about the reach of the award — territory occupied, if anywhere, by Section 35(2), and long since time-barred. 8. I note, finally, that the Applicants’ own submissions supply the answer to their application. At paragraph 15 they submit that "an Arbitrator is empowered by law to interpret a specific point or part of the award, or correct any clerical, typographical, or computation errors." That is precisely so. The power is the arbitrator’s, to be invoked before him, within time, and on the conditions the statute lays down. It is not a power this Court may exercise, and it is not one this Court may revive. 9. I therefore find that this Court has no jurisdiction to grant the substantive relief sought, and that in respect of the arbitral award of 16th June 2025, adopted as it was on 8th August 2025, it is functus officio. Ground 1 of the objection succeeds. ## ***(v) The prayer for a stay*** 1. The prayer for a stay of implementation of the amended Constitution lodged on 18th August 2025 and approved on 15th September 2025 is, on the face of the application, sought "pending" the review, clarification and/or interpretation of the award. It is interlocutory to a substantive relief which, for the reasons given, is unavailable. Having no substratum to support it, the prayer must fall with the relief to which it is ancillary. 2. I add, so that the Applicants are not left without direction, that the grievance they articulate is in truth a challenge to an act of the Registrar of Societies in registering an amendment said to have been lodged by persons lacking capacity. The Registrar is not a party to this Petition, has not been heard, and could not be bound by an order made in it. A challenge of that character is governed by the Societies Act and, if the complaint is one of unlawful or unreasonable administrative action, by the ordinary principles of administrative law. It cannot be mounted by way of a motion in a petition whose subject matter was referred out to arbitration and concluded by an adopted award. I express no view whatever on the merits of any such challenge. ## ***(vi) A word on the grounds struck out*** 1. Therefore, having struck Grounds 2 and 3 from the objection I say nothing about them, save this. Nothing in this Ruling should be read as a finding that the application was brought in bad faith. The Applicants have identified a real practical difficulty about who is to give effect to the award. Their difficulty is one of forum and of procedure, not of good faith, and it is on that narrow ground that their application fails. # **F. DISPOSITION** 1. Drawing the threads together: 1. *That Ground 1 of the Notice of Preliminary Objection raises a pure point of law and is competently taken; Grounds 2 and 3 do not and are struck out from the objection.* 2. *That the power to correct or interpret an arbitral award is vested by Section 34 of the Arbitration Act in the arbitral tribunal, exercisable within thirty days of receipt of the award and, in the case of interpretation, only where the parties have so agreed. That window closed in July 2025 and no request was ever made to the arbitrator, whose mandate has terminated under Section 33(3) of the Act.* 3. *That Section 35(4) is not a free-standing power of remission. It operates only within proceedings to set aside an award under Section 35, of which there are none and can now be none, the three-month period under Section 35(3) having expired.* 4. *That Section 10 precludes Court intervention outside the Act, and the Act provides for no "review" of an award.* 5. *That the award having been adopted by this Court on 8th August 2025, the Court is functus officio in respect of it, and has no jurisdiction to entertain the Notice of Motion dated 21st January 2026.* 6. *That the prayer for a stay, being expressly ancillary to relief that is unavailable, falls with it.* 7. *That on costs, the Respondents have succeeded on the objection and costs ordinarily follow the event. I bear in mind, however, that this is a dispute within a church, that the objection succeeded on two of its four grounds only, and that an order for costs between contending factions of the same congregation is unlikely to advance the reconciliation which the arbitral process was meant to serve. Balancing those considerations, I shall award the Respondents the costs of the preliminary objection only, and make no order as to the costs of the application.* Orders accordingly. **DATED, SIGNED AND DELIVERED AT ELDORET THIS 31ST DAY OF AUGUST 2026** **…………………………………………** **R. NYAKUNDI** **JUDGE**