[2022] KEHC 14969 (KLR)

Juma & 2 others v Lihanda & another; Orera & 4 others (Interested Parties) (Constitutional Petition 6 & 8 of 2018 (Consolidated)) [2022] KEHC 14969 (KLR) (4 November 2022) (Ruling)

Neutral citation: [2022] KEHC 14969 (KLR)

Republic of Kenya

In the High Court at Kakamega

Constitutional Petition 6 & 8 of 2018 (Consolidated)

WM Musyoka, J

November 4, 2022

Between

John Juma

1st Petitioner

Simon Alovi

2nd Petitioner

Tom Olendo

3rd Petitioner

and

Patrick Lihanda

1st Respondent

Patrick Oyondi

2nd Respondent

and

Zedekiah Orera

Interested Party

Elisha Kimaiyo

Interested Party

Registered Trustees, Pentecostal Assemblies of God

Interested Party

Members of the Pentecostal Assemblies of God Church Kenya (PAG)Appeals

Interested Party

Church Council

Interested Party

Ruling

1. The Motion for determination is dated January 28, 2022. It is brought at the instance of the Reverends Simon Alovi, John Juma and Elijah Kathiari Mikwa. They seek several prayers, namely: the deferral of the sentencing of the 1st respondent pending the hearing of the instant application and of Kisumu CACA No. E011 of 2022 ; and the expunging from record of all the proceedings in the petition and all the subsequent applications after the applicants withdrew from the matter.

2. In his affidavit sworn on January 28, 2022, the Reverend Simon Alovi avers that his name was used as one of the original petitioners in Kakamega HCCP No. 6 of 2018 without his sanction. On July 12, 2019, he filed a notice to act in person and thereafter a notice to withdraw the petition. He avers that he last appeared in court on July 24, 2019, and did not know what happened in the matter thereafter. He states that orders were made to amend the petition, which would have had the effect of removing his name from the petition, but no action was taken to comply with the order, and subsequently various orders were issued bearing his name, which had adversely affected him. He further avers that he did not sanction the filing of the application dated March 14, 2019, which sought that the 1st and 2nd respondents be cited for contempt of court. He asserts that he never instructed the firm of Mr. Arnold Ochieng Oginga, Advocate, to act for him in that application, neither did he instruct the firm of Mr. Wasilwa, Advocate, to use his name in the petition. He states that the order that convicted the 1st respondent was extracted on a paperhead or titule where his name appears as one of the parties who sought the citing of the 1st respondent for contempt of court, which was putting him at loggerheads with the congregation.

3. The applicants have attached the following documents to their affidavits. The Reverend Simon Alovi has attached a notice to act in person, dated June 12, 2019, and an un-commissioned affidavit of protest signed by him on an unknown date in 2018. There is also a notice of withdrawal of suit dated July 12, 2019, signed by the Reverends John Juma, Simon Alovi and Tom Olendo. Also attached is the ruling that I delivered herein on December 20, 2021 and the formal order extracted from that ruling. He has also attached copy of the ruling that I delivered on June 18, 2021. On his part, the Reverend Elijah Mikwa has attached the notice of withdrawal dated 14th October 2020, a copy of the ruling of December 20, 2021, the formal order extracted from the said ruling, and the ruling I delivered on June 18, 2021.

4. There are responses to the said application. One is by Mr. Arnold Ochieng Oginga. There are grounds of opposition dated February 11, 2022, and an affidavit sworn on even date. The grounds of opposition principally cite Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, to argue that a petition would not be defeated by reason only of misjoinder or non-joinder of parties, and the court may go on to deal with the matters in dispute, and, therefore, that the petition was not defeated by the mere fact of the misjoinder or non-joinder that was occasioned by the withdrawal of the applicants from the matter. It is averred that the applicants withdrew from the matter, and were substituted by other parties, who have since given evidence, based on their own statements and materials, and closed their cases. It is argued that the applicants have not demonstrated the prejudice that they have suffered or would suffer. It is submitted that the court is being invited to sit on appeal on its earlier determination of November 29, 2019, to effect that the petition raised issues of public interest, and could be taken over by new parties. It is argued that the applicants had conceded, in their papers, that they had sanctioned the petition, specifically the Reverend Elijah Mikwa in his affidavit of January 22, 2022. It is averred that in Kakamega HCCP. No. 8 of 2018 only the Reverend Elijah Mikwa had applied to be removed from the proceedings. It is submitted that the application for substitution was not contested and was allowed by consent. In the affidavit, is attached correspondence to Elijah Mikwa, to demonstrate that the proceedings were conducted with his knowledge and consent.

5. Stephen Malande swore an affidavit on February 20, 2022. It is averred that the Reverend Simon Alovi having left the proceedings, he had no locus standi to bring the instant application, as he did not even give viva voce evidence when the matter came up for oral hearings. He avers that no stay of proceedings order was made in Kisumu COAC No. E011 of 2022, and that the matter was not even certified urgent. He further avers that it was within the rights of a party to litigation to withdraw instructions, but was callous to make allegations against counsel, alleging forgery. It is averred that no evidence relating to forgery was presented. The applicants are accused of engaging in acts designed to scuttle the oral hearing of the petition. It is submitted that the applicants have not demonstrated the prejudice they would suffer should the matter be heard to its logical conclusion.

6. The affidavits by Fred Oluhano and Albert Asigo, both sworn on February 20, 2022, are replicas of each other, and the averments in them mirror those made in the affidavit of Stephen Malande. They cite Rule 5 of the Constitutionof Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, which states that a petition would not be defeated by reason only of misjoinder or non-joinder of parties, and the court may go on to deal with the matters in dispute. They aver that the applicants were at all times aware of the proceedings.

7. All 3 have attached a copy of the letter from the office of the Deputy Registrar, Court of Appeal, Kisumu, dated February 7, 2022, with respect to Kisumu CoAC No. E011 of 2022, which states that the duty Judge had declined to certify the application dated January 27, 2022 urgent.

8. Both sides have filed written submissions, which I have read through, and noted the arguments made. I understand the applicants to be seeking discontinuance of the petition herein on grounds that the same was purportedly initiated by them without their consent or authority. The applicants withdrew from the proceedings in 2019, and the matter was taken over by other parties, and the proceedings continued thereafter to full hearing, where both sides presented their respective witnesses, including the defence. The applicants knew all the while that the matter has been going on, yet they did not take any steps to intervene in the matter if they felt that they the continuation of the matter was averse to their rights and interests. They ceased to be parties after their withdrawal, and since then they have no locus standi to bring any application in this matter on any issue. The petition was initiated in 2018. If the applicants were aggrieved in 2018, that the same was initiated without their consent or authority, 2018 is when they should have moved the court to discontinue the proceedings.

9. It would appear that the applicants are alleging that papers that were lodged in court, to initiate the matter, bearing their signatures, were forged, yet they have provided no material that demonstrates that the signatures on the said documents were not theirs. Forgery is a criminal offence, and claiming that documents lodged in court are founded on forged signatures is to impute criminal activity on the person who lodged those documents in court. The burden of establishing forgery falls on the person alleging it, and the standard of proof is higher than that in civil matters, and should be close to beyond reasonable doubt. It is not enough to merely allege forgery, proof of it must be provided, and what should have been done is to place on record a report of a handwriting expert or document examiner, showing that the signatures alleged to have been made by the applicants were in fact not theirs.

10. I have perused the papers filed in Constitutional Petition No. 6 of 2018. The petition in that cause, dated September 26, 2018, was lodged herein on September 27, 2018. It was supported by an affidavit sworn by the Reverend John Juma on some undisclosed date in September 2018. Curiously, although the said the Reverend Juma is one of the applicants to the instant application, he has not sworn and filed any affidavit in support of the case that he did not instruct Mr. Wasilwa to file the said petition. It was filed contemporaneously with a Motion, dated September 26, 2018, which is supported by an affidavit sworn by the Reverend John Juma. The Reverend Juma has not come forward to deny that he swore that affidavit. The Reverend Tom Olendo also swore an affidavit to support that application, which affidavit was drawn by the firm of Malalah & Company, Advocates, where he averred to be one of the petitioners. There are various other affidavits sworn by the Reverend Tom Olendo. I note that the said the Reverend Tom Olendo has not come forward to allege that he did not swear those affidavits, or that the applications in question were filed without his instructions.

11. The renunciation of the petition in Petition No. 6 of 2018 comes from the Reverend Simon Alovi. He did not sign the affidavit in support of the petition, and I have not seen any affidavit sworn by him in support of any of the interlocutory applications that were filed by the initial petitioners. There could be credence in the claim that his involved in the petition was without his consent. However, that does not rob the petition of its propriety or validity as the other initial petitioners have not renounced it, or the affidavits that they swore or filed in support of the petition or of the affidavits in support of any of the applications filed in support of it. If it was filed without his say so, the only consequence would be the striking out of his name from the petition as petitioner. He did not apply for that to be done, instead he signed a notice to withdraw it, which had the effect of sanctioning the validity of the said petition.

12. The Reverend Mikwa does not deny sanctioning the filing of the petition in Petition No. 7 of 2018. Indeed, in paragraph 4 of his affidavit, sworn on January 28, 2022, he avers that “I did sanction the law firm of Ochieng Oginga and Co Advocates to file a petition on my behalf.” He further avers, in the same affidavit, that he filed a notice to withdraw the petition. His principal complaint revolves around the interlocutory application for contempt of court, where he is cited as one of the applicants. That application is dated March 14, 2019, drawn by the firm of Ochieng Oginga & Company, Advocates. The Reverend Mikwa is indicated to be one of the applicants, in the title, but the affidavit in support is sworn by one of the other applicants, the Reverend Tom Olendo. It could well be that the Reverend Mikwa was not one of the applicants, as he had not sworn an affidavit in its support. However, the fact that the title names him as applicant, but he did not file an affidavit in support, does not affect the authenticity or validity of that application, so long as it was supported by an affidavit, sworn by a party who has not renounced his affidavit, or who has not sworn any affidavit to say that the same was filed without his sanction.

13. These are constitutional proceedings, founded on a petition. Such proceedings are regulated by the Constitutionof Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. Rule 5 of those Rules has been brought to my attention. It states that misjoinder or non-joinder is not fatal to the proceedings, and the court seized of the matter ought to go into the heart of the matter without minding the technicalities around misjoinder or non-joinder. I repeat that these are constitutional proceedings. The Constitution, itself, speaks against technicalities of procedure, in Article 159. It says, forget about the technicalities, and just go for the heart of the matter. The principle in Article 159 should have more force or should be more pronounced in proceedings founded on the Constitution itself. The applicants herein withdrew from the proceedings, and they were substituted. Their complaint is that the pleadings were not subsequently amended to remove their names as parties. They appear to be saying, the proceedings should be terminated for that failure or omission. That argument cannot wash, in view of Rule 5 of the Constitutionof Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and Article 159 of the Constitution. The matter proceeded after their withdrawal without reference to them, and in the understanding that they were not parties. No orders have been made against them, and no subsequent orders have made any reference to them, after their withdrawal.

14. For avoidance of doubt, Rule 5(b) of the Constitutionof Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 states as follows:“A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every proceeding deal with the matter in dispute.”

15. Overall, I find no merit in the application dated January 28, 2022, and I hereby dismiss the same with costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 4th DAY OF NOVEMBER 2022W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.Mr. Karani, instructed by Karanigrey & Company, Advocates for the applicants.Mr. Wasilwa and Mr. Ondego, instructed by HM Wasilwa & Company and Ondego Garo & Company, Advocates for the petitioners in Kakamega HCCP No. 6 of 2018. Mr. Oginga, instructed by Ochieng Oginga & Company, Advocates for the petitioners in Kakamega HCCP No. 8 of 2018. Dr. Oloo, instructed by Oloo & Oloo, Advocates for the 1st and 2nd respondents.Mr. Mokua, instructed by Zablon Mokua & Company, Advocates for the 1st to 4th interested parties.Mr. Ambani, instructed by Mwangi Wahome & Company, Advocates for the Kabete PAG Church members.