[2017] KEHC 1193 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

PETITION NO. 2 OF 2009

1. JACOB MBUI

2. CHARITY NTARA

3. ANDREW NKUNJIRI

4. JOSPHAT KIRIMANIA & 431 OTHERS.............................PETITIONERS

-VERSUS-

EAST AFRICA PENTECOSTAL CHURCHES Sued through its Trustees

1. REV. JUSTUS KINOTI

2. SOSPETER NJERU

3. ANDREW KINYAMU..........................................................RESPONDENTS

JUDGMENT

Introduction

The Petitioners herein have moved this court vide a petition dated 22nd September 2009 seeking the following orders:

(a) That a declaration be issued to the effect that the Petitioners have property/beneficial interest in properties subject herein and that petitioners are mere trustees.

(b) That a declaration that the Respondent’s act of closure of church at Makutano, Kithoka Ciumbiru, Themba and Kienderu breaches the Petitioners constitutional right of worship and freedom of movement.

(c ) That a declaration that the orders of CMCC No.727/04 cannot be enforced to the detriment of the Petitioners without breaching Petitioners freedom of worship and movement.

(d) That a declaration that the Respondent should never close the churches subject herein to impeded the Petitioners access and user of the churches in issue herein.

(e) that an order that the costs of this Petition be awarded.

Following the filing of this petition, the Petitioners contemporaneous filed Chamber Summons application under Certificate of Urgency seeking the following orders:

1. THAT the conservatory orders be issued to the effect that Respondent by themselves or anybody acting on their behalf be restrained from closing Churches in Makutano on parcel No. NTIMA/IGOKI/2885. Themba on NYAKI/KITHOKA/1713, Kithoka Ciomburu NYAKI/KITHOKA/576 and Kienderu NYAKI/CHUGU/462 or whatsoever interfering with the Petitioners/Applicants access and worship in the said churches until suit herein is heard and determined or until further orders of the court.

2. THAT the conservatory orders be issued to the effect that the Respondent be restrained from whatsoever alienating, selling, transferring or whatsoever interfering with the parcels of land where the churches (Makutano, Themba, Kithoka Ciomburu and Kienderu) are situated until suit herein is heard or until further orders of the Court.

3. THAT costs be provided for.

Upon appearing before Hon.Lady Justice Kasango (as she then was) sitting as the duty court on 26/11/2009 and upon perusal the said application in the absence of the respondents, the orders were granted. In yet another application dated 4th December 2009 filed by the Respondents under Certificate of Urgency the Respondents were seeking a review and/or setting aside of the conservatory issued by Lady Justice Kasango ex parte on 26/11/2009. When this, matters came up for hearing on 29/11/2016 the parties agreed by consent to dispose of the case by written submissions.

PETITIONERS SUBMISSIONS

In their written submissions dated 26th September 2017 and filed on 28th September, 2017 through the firm of Charles Kariuki & Kiome Associates the petitioners argued that they are bonafide purchasers, owners and beneficiaries of the subject churches situated on the suit lands which were constructed using their own resources but that the parcels of land were registered in the name of the Respondents which was the mother body of the churches. The Petitioners also contend that they are beneficiaries and Christians who used to congregate to worship their God in the name of the Respondent and that the church members at one time disagreed over its leadership thus leading to a splinter group which was named East African Pentecostal Church in Living Waters which was formed by the Petitioners. Under that splinter group they formed the following churches;

East African Pentecostal Church Living Waters – MAKUTANO

East African Pentecostal Church Living Waters – KITHOKA THEMBA

East African Pentecostal Church Living Waters – KITHOKA CIOMBURU

East African Pentecostal Church Living Waters – KIENDERU

When it was apparent that a dispute had arisen, the Respondent moved to court in CMCC NO. 727 of 2004 (Meru) in which the following orders were issued against the Petitioners:

(1) A permanent injunction is hereby granted to restrain the Defendant through its agents, servants and/or representatives from interfering in any way with the plaintiff’s property, held in the titles over LR NOS. 1713,2885,2267,576, 461 and 250 as enumerated above.

(2) The claim for general damages is hereby dismissed for lacking in merit.

(3) The plaintiff gets the costs of the suit.

Being dissatisfied with the decision of the court the defendants/petitioners filed an appeal to the High Court in HCCA NO. 96 of 2008. That appeal is still pending hearing and determination before the superior court. Pending the hearing and determination of the said appeal, the defendants/petitioners filed the present petition.

RESPONDENTS SUBMISSIONS

The Respondent through the firm of Murango Mwenda and Company Advocates field their submission on 6th November 2017. In their submissions, they argued that prior to becoming members of a religious society called LIVING WATERS EAPC, they were all members of the Respondent which is a fully registered religious society under the Societies Act. Sometime in the year 2003 or thereabouts a leaderships struggle ensured within the Respondent the result wherefore some of the members including the petitioners formed a new religious organization known as LIVING WATERS EAPC. Thereafter the new organization including the Petitioners filed a suit CMCC No. 27 of 2004 (Meru) seeking orders that the four properties subject of this petitioner belonged to them. After hearing the parties, the court rendered its verdict in favour of the Respondents. Being dissatisfied with that decision, the petitioners appealed against the decision in HCC NO. 96 of 2008. That Appeal is now pending judgment. During the pendency of that appeal, the petitioners sought to stay the execution of the orders of the court in CMCC no. 727 (2004 vide an application dated 24/10/2017. That application for stay was rejected by Hon.Justice Emukule in a ruling delivered on 12/07/2009. Soon after loosing that application for stay the petitioners filed the present petition and obtained conservatory orders staying the execution of the judgment of the court in CMCC No. 727/2004 (Meru). In conclusion the Respondent argued that it was absolutely clear that the petitioners are pursuing in private claims over properties in the name of the Respondent which has already been determined by a court of competent jurisdiction and that there are no constitutional issues involved for determination by this court. He then framed the following issues for determination by the court:-

1. whether the petition raised any constitutional issues, which are pleaded with required particularity?

2. whether the petitioners can properly set up a claim of private land ownership through constitutional reference instead of an ordinary suit under the relevant Municipal law?

3. whether the issues raised in this petition are res-judicata in view of the decision of the court in CMCC.NO. 727 of 2004 (Meru)?

4. whether the petitioners can properly engage two processes, in this Petition and H.C.C.A No. 96 of 2008?.

5. whether the petitioner’s conduct in filing this petition is not an abuse of court process?

6. whether a party can use a constitution reference to challenge a judgment of a court, competently issued?

In support of their submission the Respondent’s counsel cited High Court Petition Nos. 82,83,84,85,87,88,89,90 and 91 of 2010 (consolidated) JOHN MUKORA WACHIHI –VS- MINISTER OF LANDS AND 6 OTHERS. In that case, the pettioenrs had alleged violation of their rights to property under Article 40 of the Constitution by the Respondents who were the registered owners of the land, claiming some interest as allotees. Hon. Justice Mumbi Ngugi dismissed the petition stating as follows:

“consequently, as the petitioners have no title to respective properties they claim ownership of, they cannot allege violation of their rights under Section 75 of the former Constitution or Article 40 of the Constitution of Kenya, 2010 . . . whether the properties were lawfully acquired is matter that must be determined through a process in a form that allows all the parties to present their respective cases on their merits.”

I have considered the submissions by both the petitioners and the respondents. The petitioners in this case are seeking this court to recognize that they have beneficial interest in properties registered in the name of the Respondent herein. It is regrettable that this court cannot determine the Petitioner’s interest through a petition as that can only be done by way of a civil suit. It is not in doubt that the properties being challenged have title deeds issued in favour of the Respondent. There is a process in which title deed obtained in a fraudulent manner can be revoked/cancelled. That process cannot be obtained through Constitutional Reference. it is not in doubt that the Respondent filed a civil case being CMCC No. 726 of 2004 (Meru) which was determined in favour of the Respondents. The Petitioners were dissatisfied and appealed to the High Court in HCCA No. 96 of 2008. That appeal is still pending determination. That procedure, in my view is the right process to determine issues of ownership of property and any interest thereon. The petitioners cannot abandon a process half way and move to another court seeking similar orders as that in my view is an abuse of court process. I agree with the reasoning of my sister Hon. Lady Justice Mumbi Ngugi in the cited case of JOHN MUKORA WACHIHI –VS- MINISTER OF LANDS AND 6 OTHERS PETITION NO. 82,83,84,85,87,88,89,90 AND 91 OF 2010 (CONSOLIDATED ) where she held as follows:

“consequently the petitioners have no title to respective properties they claim ownership of, they cannot allege violation of their rights under Section 75of the former Constitution or Article 40 of the Constitution of Kenya, 2010 .. . whether the properties were lawfully acquired is a matter that must be determined through a process in a form that allows all the parties to present their respective cases on their merits . . .”

In conclusion, I find and hold that this petition raised no constitutional issues for determination. The petitioners allege that their constitutional right to property has been violated when the title to the alleged properties have been issued in favour of the respondent. The petitioners have not challenged the registration of those properties in a competent court for determination on how the same were issued. The civil suit filed by the respondent in CMCC NO. 727 of 2004 (meru) which the petitioners availed themselves into made a determination which the petitioners were not satisfied with and appealed to the High Court in HCCA No. 96 of 2008 (meru) which is now pending determination. The filing of this petition therefore is an afterthought and an abuse of the court process. Consequently this position is hereby dismissed with costs to the Respondent.

SIGNED AT GARISSA ELC COURT BY JUDGE E. C. CHERONO (MR)

DATED AND DELIVERED AT MERU ELC COURT THIS 7TH DAY OF DECEMBER, 2017 IN THE PRESENCE OF:-

Janet – Court Assistant

Gichuki holding brief for Kiarie for petitioners present

Waiyaki Miss holding brief for Murango Mwenda for Respondents present

HON. L. N. MBUGUA

ELC JUDGE