[2008] KECA 305 (KLR)

IN THE COURT OF APPEAL AT NAIROBI

CIVIL APPLI NO. 145 OF 2007 (UR 95/2007)

JACKSON KIPKEMBOI KOSGEY ........................................ 1ST APPLICANT

STEPHEN KIGURU KAMAU ................................................. 2ND APPLICANT

AND

REV. BISHOP SAMUEL MURIITHI NJOGU ................... 1ST RESPONDENT

REV. JOSEPH KIPTANUI SAMOEI ................................ 2ND RESPONDENT

REV. SAMUEL MBITHI KATHITA ................................... 3RD RESPONDENT

REV. EPHRAIM WAIGANJO KARIANJAH .................... 4TH RESPONDENT

REV. GEOFFREY MUTHECHA GITAU ............................ 5TH RESPONDENT

REV. DOMINIC WAGORO.................................................6TH RESPONDENT

THE HON. JOHN N. MICHUKI, MINISTER OF STATE FOR PROVINCIAL

ADMINISTRATION & INTERNATION SECURITY..........7TH RESPONDENT

MAH. GEN. MOHAMED HUSSEIN ALI,

COMMISSIONER OF POLICE ........................................8TH RESPONDENT

THE HON. S. AMOS WAKO, ATTORNEY GENERAL...9TH RESPONDENT

(An application for stay of execution of ruling and order from the ruling and order of the High Court of Kenya at Nairobi (Nyamu, J.) dated 18th May, 2007

in

H.C. PETITION NO. 681 OF 2006)

**************************

RULING OF THE COURT

Although the record of the application before us is voluminous as it runs into about 1000 pages and all counsel for the parties addressed us at length on it, it is really a straightforward application and the principles upon which it ought to be considered are well settled. It is a notice of motion taken out under rule 5 (2) (b) of the rules of this Court seeking stay of an order made by the superior court on the 18th May, 2007. The applicants allege that the order was patently illegal and that the ensuing consequences are grave and prejudicial to them.

Perhaps the viguor and anxiety with which counsel argued the matter is understandable. At the centre of the dispute is a fairly well established church organization with numerous worshippers who profess the Christian religion. But for some time now, at any rate since 2003, the church has experienced what learned counsel for the applicants Mr. Mutula Kilonzo Jr. refers to as “wrangles that arise in the cause of human interaction” but which, Dr. John Khaminwa, learned counsel for the respondents 1 – 6 identifies as “wanton violence which negates all human rights notions of freedom”. Whatever the diagnosis, it is evident that the church, its leadership and membership, has found no peace in the last four years or so. We are told the semblance of peace that currently holds it together is the court order now being impugned before us. The respondents’ earnest prayer is that this Court upholds the superior court’s order for the sake of avoiding the inevitable recurrence of violence that will erupt without it. However, the matter, whatever its gravity, cannot be decided purely on emotion, whim or caprice. The law and sound reason must be brought to bear if justice be seen to be done.

The law in an application under rule 5(2) (b) is that the onus is on the applicant to satisfy the court on the material available on record, that the intended appeal is not frivolous, or in other words, that it is arguable even on a solitary ground, and secondly, if it is, that the appeal would, if successful, be rendered nugatory unless the interim relief is granted – see Githunguri v Jimba Credit Corporation (No. 2) [1988] KLR 838; J.K. Industries v Kenya Commercial Bank Ltd & Anor. [1987] KLR 506. Unless the twin principles are satisfied, it would be a rare case where favourable exercise of this Court’s discretion, though unfettered, is extended to the applicant. Nothing in those principles however takes away the power of the Court to record orders with the consent of the parties or, in an appropriate case, to issue such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the court - See Rule 3 of this Court’s rules. In sum, the guiding principles must be considered against the facts and circumstances of each case.

What are the salient facts behind the application before us?

The Full Gospel Churches of Kenya (hereinafter “the church”) has been in existence as a registered Society since 1950 and has established its presence in all the eight provinces of this country. It has a constitution which has been amended from time to time and its avowed objectives, amongst others, is to conduct “pastoral, proseletising, evangelical and missionary works throughout Kenya”. For that purpose, it has employed in excess of 5000 staff of various categories and descriptions and has engaged the assistance of more than 7000 volunteers and some foreign missionaries. On an annual budget in excess of Kshs. 100 million and a large portfolio of moveable and real property, it is evidently a large organization.

There are two applicants before us and both are represented by Kilonzo Jr: Stephen Kiguru Kamau, (Kamau) the 2nd applicant who until the year 2001 was the General Overseer of the church but was replaced in elections held in October that year, and Jackson Kipkemboi Kosgey (Kosgey), the 1st applicant who until November, 2003 was the General Secretary of the church but was replaced in a general election held in November that year. While Kamau concedes the change in respect of the General Overseer, however, Kosgey has never accepted his replacement in the church hierarchy. With the support of some members of the church, the two effectively split the church into two opposing and hostile camps and moved to challenge the authority of those the church held out as the rightful leaders. In the last four years there has been no less than 30 suits of various descriptions between the parties in courts across the country. More ominously, there are documented scuffles and acts of violence involving the two factions.

The group that claims authentic leadership of the church is represented in this application by the respondents 1 – 6 and all of them are represented by Senior Counsel Dr. Khaminwa who is assisted by Mr. Michael Chemwok, Advocate. The respondents derive their legitimacy from a document issued by the Registrar of Societies dated 3rd October, 2006, and exhibited with the record, confirming the church’s officials. There were also other documents issued by the Registrar in 2003 to the same effect. Among the rightful officials are the respondents 1, 2 and 3 who are designated as General Overseer, Deputy General Overseer and General Secretary respectively. The 1st and 3rd respondents together with the 4th and 5th respondents are also registered as members of an autonomous Board of Trustees of the church (The Full Gospel Churches of Kenya Registered Trustees) charged with the responsibility of safeguarding the property of the church. The 6th respondent is a member of the National Executive Council of the church.

As stated earlier, there have been numerous court cases between the parties. Some have been concluded and court orders issued therein have remained unchallenged while other suits are still pending. The respondents 1 – 6 claim that in the cases where final orders have been issued, those orders have been flouted by the two applicants contemptuously and with impunity and that their actions have caused extensive damage to the normal operations of the church and to the property of the church. They lodged complaints with the Attorney General in September, 2006 for investigations and called for prosecution of the perpetrators of the violence. They did this on the basis that they were entitled to the protection of the law under the Constitution of Kenya but the security forces of this country appeared either unwilling or incompetent to guarantee the security of the church and its members or the freedom of assembly, speech and expression protected in the same Constitution. They also alleged that there were criminal offences personally committed by the two applicants which warranted investigations but had been ignored. In the meantime, the church, according to the respondents 1 – 6, had in April, 2005 taken action against the two applicants, together with a few other members, to ex-communicate them from the membership of the church in accordance with Biblical canons and the church constitution. Their licences issued under the African Christian Marriage and Divorce Act were cancelled and the cancellation was published through Kenya Gazette Notice NO. 5181 of July, 2006. Henceforth, according to the respondents 1 – 6, the two applicants had no locus standi in the affairs of the church. The validity of such ex-communication and cancellation of licences has, of course, been consistently denied and resisted by the two applicants.

An attempt was made by the Attorney General through the relevant Government officers to address the complaint raised by the respondents 1 – 6 by issuing directives for protection of the law to be afforded to the church and its members. But there was no implementation of those directives by officers on the ground and therefore the mayhem in the church continued unabated. The respondents 1 – 6 were therefore forced to file a Petition under section 84 of the Constitution of Kenya for consideration of alleged violation of their rights under sections 70 (A), 70 (B), 70 (C), 76, 79and80 (1)of the Constitution. That was Petition No. 681 of 2006 filed on 14th November, 2006. They enjoined the Minister in-charge of Internal Security as the 1st respondent (the 7th respondent here), the Commissioner of Police as the 2nd respondent (the 8th respondent here), the Attorney General as the 3rd respondent (the 9th respondent here) and the two applicants here as the 4th and 5th respondents in the petition. The petition seeks the following substantive orders: -

“a) This Honourable Court does order the Second and Third Respondents to investigate the allegations that the Fourth Respondent tried to pervert the court of justice by telephoning the Honourable Mr. Justice J.K. Sergon in a bid to influence the outcome of a pending Ruling.

b) This Honourable Court does order the Third Respondent to initiate Court proceedings to declare the Fourth and Fifth Respondents to be vexatious litigants within the meaning of Section 2(1) of the Vexatious Proceedings Act (Cap 41).

c) This Honourable Court does order the Second Respondent to investigate allegations made to the effect that the Fourth and Fifth Respondents by themselves, agents, servants or adherents have perpetrated or instigated others to commit unlawful acts of violence and criminal trespass against the FGCK congregations and property in Kisumu, Eldoret, Mombasa, Gatundu, Molo, Njoro, Nakuru and in Nairobi (Dandora, Kayole, Githurai and Buruburu).

d) This Honourable Court be pleased to restrain the Fourth and Fifth Respondents, their servants, agents, adherents and or followers from convening any meetings for and on behalf of the Full Gospel Churches of Kenya, inciting and or attempting to split the church administration, interfering with any office bearers of the church, colluding with any officials currently in office and past officials of any other members of the Full Gospel Churches of Kenya and or holding illegal meetings touching on matters of the National, Regional, District and or Local Church administration of the Petition herein.

e) This Honourable Court be pleased to restrain the Fourth and Fifth Respondents by themselves, their servants, agents and or their adherents or followers and others from calling themselves General Secretary and General Overseer respectively of the Full Gospel Churches of Kenya.

f) This Honourable Court be pleased to declare that the Petitioners and the FGCK congregation are entitled to the assistance of the second Respondent and of officers commanding police stations of Molo, Iten, Mogotio, Buruburu, Naivasha, Kinangop and Bondeni in Nakuru generally to enforce the Injunction issued by the Honourable Mr. Justice Ransley on 10th March 2005 and in particular in restraining the Fourth and Fifth Respondent from preaching, disrupting, entering, interfering with, holding illegal meetings and or worshipping in church property.

g) This Honourable Court do direct the First and Second Respondent to investigate administratively why previous orders and directives that they issued to their juniors were not implemented.”

The petition has yet to be heard and is still pending before the superior court.

By chamber summons filed on 20th November, 2006 pursuant to rules 20 and 21 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights of the Individual, High Court Practice and Procedure Rules, 2006; the respondents 1 – 6 sought the following interim orders pending the hearing of the petition: -

“2. THAT the first respondent be ordered to implement and enforce his lawful directive dated 19th July, 2006, and addressed to the second respondent whereby the latter was requested urgently to instruct OCPD’s in charge of certain areas not to condone acts of lawlessness being perpetrated by the fourth and fifth respondents and/or their adherent, agents or servants;

3. THAT the second respondent be ordered to enforce his lawful order dated 24th July, 2006 and addressed to all Provincial Police officers within the Republic of Kenya, which order was to the following effect: -

i. The Police should not condone acts of lawlessness being perpetrated by the fourth and fifth respondents and other excommunicated ex-pastors with reference to the property and congregations of the Full Gospel Churches of Kenya;

ii. The Police to stop the fourth and fifth respondents and other excommunicated pastors from styling themselves as officials of the Full Gospel Churches in Kenya;

iii. The Police to stop the fourth and fifth respondents by themselves, agents, servants or adherents from engineering wrangles or violent confrontations in various stations within the Full Gospel Churches of Kenya Church; and

iv. The police not to interfere with the operations of Full Gospel churches of Kenya as represented by the bona fide leaders of the same, being the Petitioners/Applicants.

4. THAT the second and third respondents be ordered to investigate the allegation that the fourth respondent corruptly phoned the Honourable Mr. Justice Sergon in a bid to influence extra-judicially the ruling pending before the Judge in civil Case No. 238 of 2005 (Mombasa.)

5. THAT without prejudice to the generality of the foregoing the second respondent be ordered to instruct/order the officers commanding police stations of Molo, Iten, Mogotio, Buruburu, Naivasha, Kinagop and Bondeni in Nakuru to assist in the execution of the Injunctive Order made on 9th March 2005, at Nairobi by the Honourable Mr. Justice Ransley in civil Case No. 1236 of 2004 whose intent and effect was to:

i) Restrain the fourth and fifth respondents either by themselves or through their servants, agents, employees and/or followers from interfering with the Petitioners/applicants’ running of the Full Gospel Churches of Kenya church affairs in the National, Regional and District or Local church assemblies, and or any other branch and that Orders issued and/or directions be it transfer, disciplinary action and/or otherwise be as they are;

ii) Injunct the fourth and fifth respondents and other excommunicated former Pastors from preaching, disrupting, interfering, holding illegal meetings and/or worshiping in the church.

6. THAT the new office bearers elected on 27th – 28th September, 2006 and registered by the Registrar of Societies on 3rd October, 2006 be allowed to perform their duties as officers of Full Gospel Churches of Kenya, and the Second Respondent be ordered to extend to the said registered officials all such police assistance as they may stand in need of.”

The application was first placed before Emukule J. on 21st November, 2006 for issuance of ex parte orders pending the hearing of the application inter partes but the Judge refused to grant the ex parte orders. He certified the matter urgent and left it to the applicants (respondents 1 – 6) to renew their prayers at the inter partes hearing. The application was served and a replying affidavit was sworn and filed by Kamau, the 2nd applicant, contending inter alia, that the petition did not raise specific constitutional issues; that it was an abuse of the Court process as there were other civil cases pending determination in various courts; that the facts deponed in several affidavits in support of the petition and applications were not truthful and are scandalous; that there has never been any lawful election interfering with the two applicants’ positions as officials of the church; that the two applicants have never unlawfully interfered with the running of the affairs of the church; that the purported excommunication of the applicants was in breach of an existing court order and was therefore invalid; that there was no existing court order in favour of the respondents which the two applicants have flouted and there was no basis therefore to enjoin them in the petition.

The 7th to 9th respondents (the respondents 1 – 3 in the petition and chamber summons (hereinafter “the executive”) did not file a replying affidavit although leave was granted for them to do so before the hearing inter partes. Instead they embarked on negotiations with the respondents 1 – 6 whereupon they basically compromised prayers No. 5 and 6 in the chamber summons (supra). Without involving the two applicants at any stage, they drew up and signed a consent letter dated 30th March, 2007 which they filed in court on 11th April, 2007 with the intention that the compromise be made an order of the court. Naturally the applicants were incensed by that turn of events as the consent not only purported to recognize the respondents 1 – 6 as the lawful leaders of the church who ought to receive protection of the executive in the running of the church affairs, but also purported to keep away the applicants, and a motley of fifty other named persons said to be their “servants, agents, employees and/or followers”, from any activities of the church. Even before the chamber application was set down for hearing inter partes, the applicants took out a “notice of motion” dated 30th April, 2007 seeking urgent orders that the execution of the consent be stayed pending the hearing of the application and that the consent be set aside in its entirety. The consent was stayed pending the hearing of the application and all parties were heard on the merits of the application by Nyamu, J. In his considered ruling delivered on 18th May, 2007, Nyamu, J. not only dismissed the application but also rejected a further application for stay pending appeal, ordering instead, that the consent letter signed on 30th March, 2007 be made an order of the court. The order which is now the subject matter of this application was issued accordingly on 21st May, 2007.

In dismissing the application, Nyamu, J. emphasized that the substance of the main petition was “law and order and security in the Full Gospel Church in Kenya due to alleged infighting of its leaders and followers”. He also pointed out that the chamber application seeking conservatory orders was yet to be heard inter partes and, in due course, the court would hear the parties fully on the petition and also consider whether the conservatory orders ought to be granted, reviewed, rejected or affirmed by the court on merit. The terms of the consent sought to be set aside dealt only with one aspect of the application for conservatory orders. He also examined previous orders issued by various courts in relation to the dispute and in the end gave 8 reasons for dismissing the application, thus:

“1. Firstly, the consent letter is giving effect to a past court order namely that of Justice Ransley and it is also as a result of Hon. Justice Emukule ruling that challenged the 1st respondents to enforce law and order and as such the 4th and 5th respondents had no role in the matter although they are parties to the Constitutional matter. The proper parties were the first to third respondents.

2. Security matters are largely non justiciable and the court cannot therefore stop any of the parties to the suit entering into a consent with the 1st, 2nd and 3rd respondents. Consent can in law be entered into even in matters not arising from the subject matter. According to Mulla on Civil Procedure 13 Edition pg. 1292 the scope of the compromise is that the compromise in a pending suit may:

(i) relate to the whole suit or

(ii) it may relate only to a part thereof or

(iii) it may also compromise matters that do not relate to the suit.

3. Since the compromise or consent letter only related to law and order or security matters it cannot be specifically enforced and therefore the consent is not a contract as such. The State is under a constitutional responsibility to enforce law and order and offer to all the protection of law. Nothing can vitiate such a contract unlike the ordinary contracts touching on other matters in a pending suit. It would be against the policy of the law and the public interest for a court to set aside such compromise. Similarly the fact that some of the parties to the suit are not parties to a compromise touching on law and order would not vitiate the compromise.

4. The Judiciary itself is subject to the Bill of rights provision of the Constitution and it cannot properly be asked to unravel a compromise that purports to preserve law and order. This would be unconstitutional and a serious abdication of the Judiciary’s responsibility under the Bill of Rights provisions. On the contrary the court has a positive obligation to uphold and to enforce such a compromise.

5. Prima facie in view of the ruling on the applicants/respondents status as excommunicants they lack the capacity to enter into any such consent or compromise (a fact they failed to disclose to this court when they obtained a stay on the consent letter – thereby revealing bad faith on their part, See judgment of my sister Lady Justice Wendoh of 3rd March, 2007. In any event the elements which vitiate contracts are absent in respect of the consent letter – fraud, mistake misrepresentation.

6. All issues shall be determined in the main petition and the respondents cannot demonstrate any prejudice. Issues of law and order touch on all people including those not in the suit itself. Their inclusion cannot vitiate the compromise.

7. Disclosure of the applicants/respondents status was a material fact – and had this been disclosed to the court it could not have on this ground alone given a stay. The application must fail as well.

8. Although Chapter 5 protective provisions of our Constitution mention securing guaranteeing and protecting fundamental rights the International instruments which Kenya has ratified, including the relevant international law and, the notion of the universality of human rights do compliment responsibility. I am therefore in agreement as I have held in another matter that “protection of law” on the part of the State encompasses a three fold duty to.

(a) Avoid breaching legal rights of citizens.

(b) Protect the said citizens rights from being breached by others; and

(c) To assist citizens whose rights have been or are being breached.

And as regards breaches of rights the State has an inscapable duty to:

(d) Prevent.

(e) Investigate,

(f) Punish.

(g) Restore and

(h) Redress.

This definition is of course subject to the unique wording of s. 84 of the Constitution. There are restrictions on standing and who is aggrieved. A holistic view of translating human rights into practice will remain the biggest challenge to the courts.

It is with the above view of State responsibility on security for example, that I decline to set aside a consent order on security because in entering into the consent the State is only performing its core duty of maintaining law and order and securing fundamental rights as outlined above.”

In his attempt to satisfy the first principle cited above, Mr. Kilonzo Junior submitted that a purported consent made between parties to a suit which affects other parties to the suit who are not part of the consent would be a nullity, if not irregular, and that would be an arguable point in the intended appeal. It will also be argued on appeal that that the matter before the superior court was justiciable contrary to the finding by the learned Judge that matters on security were not; that the consent intended to be challenged was a contract which was impeachable contrary to the finding that it was not a contract; that the finding that the applicants were excommunicants was made per incuriam; that the order made to adopt the consent as a an order of the court was not pursuant to any prayer made by any party and was therefore irregularly made; and that the orders ensuing from the consent were in conflict with court orders made in other court cases between the parties.

As to the nugatory aspect, Mr. Kilonzo Jr. submitted that the consequence of the superior court’s order would be to exclude the two applicants, together with persons who are not parties to the petition, from membership of the church. It would also grant to the police and other security forces the licence to forcibly prevent the applicants from exercising their freedom of worship by closing down some 25 churches where the applicants were in-charge. In his view, the status quo before the purported consent should be maintained pending the hearing of the appeal since any other order would render the intended appeal meaningless.

For his part, Dr. Khaminwa stressed that the two applicants were excommunicants of the church for reasons that were well documented and there was a court order, which has not been set aside, confirming that position. As such, they had no locus standi in negotiating any consent on behalf of the church and therefore their exclusion in the compromise made in the chamber summons was regular. It was a frivolous issue to raise any further. Dr. Khaminwa further highlighted the well documented rampant violence which had continued unabated within the church and which threatened the very existence of the church organization. It was on the basis of such background that the petition and the application for conservatory orders were filed and it would be futile, in his submission, to interfere with the order of the superior court before the validity or otherwise of the facts stated in both the petition and the chamber summons were determined. Citing broad principles of human rights and the duty of the state to guarantee constitutional rights, Dr. Khaminwa submitted that the executive in this matter had readily conceded its duty to comply with the law and it was for the courts to promote sanity and peace, the antithesis of which is cancerous violence. Dr. Khaminwa prayed that the order be sustained as it was in favour of persons who were recognised by the Registrar of Societies, until it is proved otherwise, as the rightful leaders of the church. The application must therefore be rejected.

For the executive, learned counsel Mr. Chahale submitted that the state is enjoined in the matter due to undisputed facts that there was unrest and insecurity in the church organization. Negotiations on the consent were carried out with the registered and bonafide officials of the church and the law did not preclude the recording of partial consents in any litigation. The consent merely addressed the issue of law and order which was a matter of notoriety within the church and no reasons were advanced to interfere with the terms of the consent. It was neither against public policy, illegal, fraudulent or based on misrepresentations. On the basis that the applicants were excommunicants, and did not even disclose it to the court, there was no prejudice in excluding them from the negotiations. Finally, Mr. Chahale observed that there has been peace since the order was granted and it was paramount that such peace be maintained pending the hearing and determination of the pending matters.

We have anxiously but carefully considered the application, the submissions of all counsel and the authorities cited before us. Quite understandably we cannot delve into and resolve any factual issues in the dispute since the main petition made under the Constitution, and the chamber summons taken out thereunder for conservatory or interim orders are still pending hearing before the superior court. The intended appeal is limited to an application made within the main application and is essentially a challenge on the exercise of judicial discretion by the superior court. It has never been a simple task to succeed in such challenge, but it is not unusual for a party to succeed once it is shown that the court misdirected itself or acted on matters on which it should not have acted upon or failed to take into consideration matters which should have been taken into consideration and in doing so arrived at the wrong conclusion – see Mbogo v Shah [1968] EA 93. The applicants have raised a number of issues which will be argued in the intended appeal and we are not prepared to say at this stage that they are frivolous or unarguable. As stated earlier, even a solitary ground, if sufficiently weighty, will avail the applicant. The claim is not insubstantial, for example, that the impugned consent which affected the rights and obligations of the applicants was arrived at without their complicity. Nor were other contentions made by the applicants merely idle propositions. That those issues are arguable however is not the end of the matter. We have to be satisfied that the success of the intended appeal, if the appeal succeeds eventually, will be rendered nugatory. We think not.

It is not lost to us that there is a substantive petition and an application for conservatory orders which remain unprosecuted before the superior court although there is nothing to prevent their conclusion on merits. Neither of the parties appears to be keen on expediting the hearing on substantive matters although they are extremely active in pursuing interlocutory matters and transient issues. We are told there are other court matters still outstanding between the applicants and the respondents 1- 6 and also on other aspects of the church organization. It is sensible, in our view, that whichever party eventually and finally succeeds in those disputes will still find a church to lead or worship in. The orders intended to be impugned addressed the issue of violence and we cannot close our eyes to such a spectre, which, on the material on record, is undeniable. It does not appear to us that the consequences of the orders would be irreversible even if the intended appeal was successful or that any ensuing damage would be incompensable. What would be irreversible and incompensable is loss of life and lost peace in circumstances that could have prevented such loss.

It is imperative that both parties resolve their disputes lawfully and in an atmosphere devoid of breakdown of law and order. The earlier the parties move the courts to determine their disputes, if prayer and alternative dispute resolution methods have been tried and failed, the better for them as individuals and as a church organization.

In all the circumstances of this case, we are not persuaded that we should interfere with the order of the superior court at this stage or that we should grant any of the orders sought in the notice of motion dated 26th June, 2007. In the result, we order that the application be and is hereby dismissed. The costs of the application shall abide the result of the intended appeal.

Dated and delivered at Nairobi this 29th day of February, 2008.

P.K. TUNOI

.......................

JUDGE OF APPEAL

E.O. O’KUBASU

......................

JUDGE OF APPEAL

P.N. WAKI

......................

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR