[2022] KEHC 11857 (KLR)

Kausi & another v Mulati & 6 others (Civil Case 9 of 2014) [2022] KEHC 11857 (KLR) (13 May 2022) (Judgment)

Neutral citation: [2022] KEHC 11857 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Case 9 of 2014

WM Musyoka, J

May 13, 2022

Between

Festus Kausi

1st Plaintiff

Johnson Mutoro((suing on behalf of the Church Group of Light)

2nd Plaintiff

and

Samwel Y. Mulati

1st Defendant

Ben Masika

2nd Defendant

Enock Bpl Mukonyi

3rd Defendant

Joseph Masinde

4th Defendant

Samwel Walter Mboli

5th Defendant

Joseph Wekesa

6th Defendant

Jairo Mukangai

7th Defendant

Judgment

1. The suit herein was brought by the two plaintiffs, by their plaint dated 14th April 2014, purportedly on behalf of the Church Group of Light, hereafter referred to as the Church, against the defendants. The defendants were alleged to have had had, on 24th March 2014, presented annual returns to the Registrar of Societies, purporting them to a notice of change of the officers of the Church, wherein they caused themselves to be registered as the officials of the Church. The plaintiffs contend that the Church had not held any elections, and, therefore, there was no basis for registration of new officials. They seek a declaration that the notification of change of the officials of the Church dated 17th March 2014, was null and void; and a permanent injunction to bar the defendants from presenting themselves as officers of the Church and interfering with the operations of the Church in any way.

2. In their defence, dated 26th May 2014, they contend that the plaintiffs had ceased to be members of the Church, and they had no capacity, in the circumstances, to bring a suit on matters relating to the Church. They concede that they filed a notice of change of officers of the Church, and assert that the same was done in accordance with the Constitution of the Church, following elections that had been conducted upon expiry of the tenure of the plaintiffs as officers of the Church. They aver that there was a previous suit, being Kakamega HCCC No. 47 of 1999, between the same parties, where the plaintiffs had been found guilty of contempt of court, and the instant suit was an attempt by them to circumvent the contempt orders. They assert that the court was functus officio and the matter was res judicata. It is further contended that the plaintiffs had formed a splinter group, and moved away from the head office of the Church.

3. The defendants filed a notice to act in person, on 9th March 2015, of even date. They followed it up, on 12th May 2015, with filing a joint statement of defence, with a counterclaim, dated 11th May 2015. They aver in that defence that the plaintiffs had no consent of the Church to file the suit, and had of their own volition left the church, and set up a separate church on North Kabras/Matsakha/397, away from the headquarters of the Church at North Kabras/Matsakha/333. They denied filing falsified records at the registry of societies. They accuse the plaintiffs of fraud, particularly of which are set out, being using the name of the Church when they should not be, masquerading as elected officials of the Church, failing to follow the Constitution of the Church, districting the original Constitution of the Church, entering into a false consent order to buy their freedom, falsifying and filing misleading returns with the Registrar of Societies, holding a registration certificate of the Church which had since been cancelled, and acting with deceit and malice. It is asserted that there were several suits pending between the parties over the same subject it is further asserted that the instant suit is res judicata. There is a counterclaim that the defendants are the bona fide officials of the Church, the group legally entitled to the exclusive use of the name of the Church and registration certificate of the Church, and that the plaintiffs be restrained from using the name of the Church or its registration certificate. It is not clear whether the defendants had withdrawn the defence filed earlier, or had obtained leave of court to file this second defence.

4. The plaintiffs replied to the defence of 11th May 2015 and filed a defence to the counterclaim dated 19th June 2015. In their reply they maintained that the defendants were unlawfully occupying and using the Church land on North Kabras/Matsakha/333, asserting that they shall obtain orders to evict them from the land and to restrain them from using the name of the Church. They maintain that they are the bona fide officials of the Church, and deny being a splinter group, saying that it was the defendants who were in fact leading a splinter group. They concede the pendency of several court cases between the parties, but assert that they turn on distinguishable issues, and therefore the doctrine of res judicata did not apply. In their defence to the counterclaim, they state that the defendants were unlawfully suing the name of the Church and were in illegal possession of the registration certificate of the Church, and they would file preliminary objections to effect that the defence was bad in law and there was no valid counterclaim. The plaintiffs then filed an amended plaint, dated 16th February 2016, to align it to the defence and counterclaim of 11th May 2015, and their reply to the defence and defence to the counterclaim dated 19th June 2015. An amended defence, dated 14th June 2017, was filed in response to the amended plaint of 16th February 2016.

5. The defendants had filed a notice of preliminary objection, dated 26th May 2014, contemporaneously with the defence. In it they asserted that the present suit was res judicata as there was another suit, Kakamega HCCC No. 47 of 1999, between the same parties over the same subject, where the plaintiffs were found to be in contempt of court and had been sentenced. The preliminary objection was canvassed by way of written submissions, and a ruling was delivered on 11th December 2014, dismissing it, on grounds that the issue raised could not be disposed of without the court looking at evidential material, which had not yet been placed before the court.

6. The plaintiffs had filed a Motion, simultaneously with their plaint, dated 14th April 2014, where they sought an injunction to restrain the defendants from presenting themselves as officers of the Church. The facts were that the Church had not conducted elections which would have required a filing of a notice of change of officials. They asserted that the notice of change filed was fraudulent and unlawful. The defendants responded to that application vide an affidavit filed in court on 26th May 2015, by the 7th defendant, saying that there no disclosure that the plaintiffs had since left the Church and formed a splinter group, which operated away from the grounds of the Church. He averred that it had not been disclosed that the defendants operated from North Kabras/Matsakha/333, while the plaintiffs were based at North Kabras/Matsakha/397. He further averred that the two groups had different leaders, operated under different constitutions and had different congregations. He identified the leaders as the 1st plaintiff for the splinter group and Mzee Samwel Mulati for the Church. He asserted that the dispute was over which of the two groups was entitled to the use of the name the Church Group of Light, and therefore to a registration certificate bearing that name. It was averred that the 1st plaintiff, to win his freedom, upon conviction for contempt of court, had said that he had lost the original certificate of registration of the Church, a report of the loss was made to the police, a police abstract was obtained and the exercise of obtaining a fresh one was embarked upon. It was asserted that the two groups had been operating separately for over sixteen years. The application dated 14th April 2014 was canvassed by way of written submissions, and in a ruling delivered on 8th December 2014, the court declined to grant the orders sought, on grounds that although the provisions of the Societies Act allowed for an internal dispute resolution mechanism, the plaintiffs had not demonstrated that that process had been exhausted, after they written to the Registrar of Societies, complaining about the filing of notice of change of officials, and it was difficult for the court, at that stage, to determine who the bona fide officials of the Church were.

7. The defendants filed a Motion on 18th December 2014, of even date, seeking the striking out of the suit, on grounds of res judicata, lack of jurisdiction, being an abuse of process of the court, being scandalous frivolous or vexation, and for being sub judice. They pointed to the suits in Kakamega HCCC No. 47 of 1999, Bungoma CMCCC No. 264 of 2002 and Kakamega CMCCC No. 622 of 2004, all revolving around the leadership of the Church. The plaintiffs responded saying that the said suits were between different parties and turned on different issues, and in any event there was no evidence that the suits had been concluded. That application was subsequently withdrawn, vide a notice dated 9th March 2015, filed in court on even date, apparently upon the filing of a notice of preliminary objection by the plaintiffs, dated 2nd January 2015, raising the ground that the said application was untenable following the ruling of 11th December 2014 on the defendants notice or preliminary objection. The same application was refiled on 13th March 2015, bearing an even date. There is no record indicating whether the plaintiffs ever responded to the two applications. Anyhow, the application dated 13th March 2015 was subsequently withdrawn on 8th October 2015. Curiously, although the Motion, dated 13th March 2015, was marked, by the court, on 8th October 2015, as withdrawn, and there is no order on record reinstating it, it was given a date at the registry on 3rd August 2016, for hearing on 24th October 2016. The same was argued orally on 20th November 2016, and a ruling was delivered on it on 5th April 2017, dismissing it, on grounds that the instant suit was neither res judicata nor sub judice the previous suits the subject of the application.

8. The case proceeded orally. The oral hearing commenced on 17th October 2017, with the 1st plaintiff, Festo Kausi Lumbasi, being the first on the witness stand. He was the Chief Priest of the Church, which was registered in 1972. He said that the Church was registered on 30th March 1987. He stated that in 2013, some people went to the Registrar of Societies, and changed the particulars of the leadership of the church. He described that as former members of the Church. He explained that such changes could only be made after due process was followed, a committee meeting being called by the General Secretary , which would deliberate on the matter, then make recommendations to the general meetings, which would approve the minutes and call for elections. He stated that that was not done. He said that after the events of 2013, they wrote to the Registrar of Societies, seeking to know who the rightful officials of the Church were, and the Registrar of Societies wrote back, a letter date 20th June 2016, confirming the plaintiffs as the rightful leaders. He urged the court to declare the plaintiffs as the rightful leaders of the Church, to dismiss the counterclaim.

9. During cross-examination, he stated that the defendants were members of the Church, but not its officials. He said that his headquarters was at his home, adding that the defendants did not attend services at the church based at his home, but operate from the Lurambi Mission Headquarters. He said that there was a Constitution for the Church, which was amended in 1987. He stated that Kakamega HCCC No. 47 of 1999, was a suit brought against him, and that it had been concluded. He conceded that he was once jailed, on orders made in that suit, for contempt of court. He said that he had refused to surrender the original certificate of registration of the Church, as ordered by the court. He said that he did not to whom he should have surrendered it. He said the original certificate of registration existed, and was at his home. He accused the defendants of filing returns with the Registrar of Societies corruptly, and he sued them because they had staged a coup. He said that the 1972 Constitution was amended in 1987.

10. Johnson Sande Mutoro followed. He was the Secretary-General of the Church. He said that when he went to the registry of societies to file returns, he found that other people had field changes, and that was how the dispute started. They instructed an Advocate who wrote to the Registrar asking who the officials of the Church were, and the defendants had been issued with a certificate of registration. The Registrar wrote back, a letter dated 4th October 2019, he stated that stating that there had been a mistake, and that the genuine group was that of the plaintiffs. He stated that the certificates issued to both sides were genuine. He said that as elections had not been held, no changes should have been registered. He said that elections had not yet been held due to disputes. He stated that the name of the Church should be retained, and the defendants ought to identify a name for their group.

11. During cross-examination, he conceded that Church officials had been jailed for contempt of orders made in Kakamega HCCC No. 47 of 1999. He said that the certificate of registration was kept by the 1st plaintiff, as Chief Priest and founder of the Church. He stated that he attended the Church which operated from the home of the 1st plaintiff. He said that the Church had ordered status quo, and so the defendants remained at the church compound, while the plaintiffs retreated to the home of the 1st plaintiff. He said the two groups were not different, for they operated under the same Constitution. He said that the letter dated 2nd October 2019 indicated that the certificate issued to the defendants had an error. He asserted that the Church was not registered in 2014, but in 1987. He said that the Church had two certificates. He asserted that the 2014 certificate was not valid.

12. The case for the defendants opened on 29th October 2021. Benjamin Nasika Wekesa was the first to testify. He said that he was the second in command of the Church in 2014, and held the position of Bishop. He said that the 1st plaintiff left the Church and erected another at his home. He said the Church began in 1966. There were leadership wrangles which led up to a separation, which culminated in the founding of the current Church in 1972. He said that the defendants had their own church and the plaintiffs had their own. He said his church had a registration certificate, and the plaintiffs had their own. there were wrangles in Church between them, and they asked the 1st plaintiff to produce the original certificate of registration, he refused, so they went to the Registrar of Societies and obtained new one, are the original one was said to have been lost,. He asserted that they were not in office illegally or fraudulently. He said that they had their own office, while the plaintiffs had their own. He said that his group had its own Constitution, although he could not tell, due to illiteracy, whether it differed from that under which the plaintiffs were operating.

13. During cross-examination, he stated that Kakamega HCCC No. 47 of 1999 started after the plaintiffs left with the Church certificate and the name of the Church, and the two groups then went their separate ways. The defendants won the case and the 1st plaintiff was jailed. He said that he was not sure about how the case eventually ended. He stated that they went to the registrar of Societies and changed particulars, and were issued with a certificate of registration, whereupon they filed returned for two years. Thereafter the plaintiffs had the particulars at the registry changed, and began to file returns. He said that the instant suit was initiated against them because their names were at the register of the Church at the Registry of Societies, and the plaintiffs could not file returns as a result.

14. Jairo Mukangai followed. He asserted that the defendants were the true leaders of the Church according to the records at the Registry of Societies. He stated that they held the original certificate of registration of the Church, which was issued on 10th May 1987. He stated that owing to leadership differences, which arose because the 1st plaintiff did not want to account for his leadership, the 1st plaintiff established a church at his home, and left the defendants operating at 333. He said that the plaintiffs caused the Church Constitution to be amended in 11998/1999, where upon the defendants sued him in Kakamega HCCC No. 47 of 1999. He asserted that the defendants had their own Constitution, flag and drums. The 1st plaintiff was also said to have set a separate administration, and it was for that reason that one of the orders sought in Kakamega HCCC No. 47 of 1999 was for return of the certificate of registration of the Church. They group also wanted the amendments effected to the Constitution to be vacated, so that they could hold elections. He said that a status quo order was made in Kakamega HCCC No. 47 of 1999, hence each group continued to operate from where they were. There was an order for the original certificate of registration to be produced in court, which the 1st plaintiff effused to do, leading to his being cited for contempt of court. The defendants conceded to his release on condition that the parties reconcile. When the reconciliation talks failed, the defendants opted to apply for a renewal of the certificate of registration, and they were issued with a duplicate certificate dated 12th February 2014, after which they began to file returns. He asserted that the defendants were the rightful group, saying that they never moved out of the Church headquarters at 333. He stated that the court should allow the two groups to operate separately. He referred to the case filed by the 2nd plaintiff, Bungoma CMCCC No. 264 of 2002, to stop Church activities, but the court allowed them to go on with their activities. There was also Kakamega CMCCC No. 622 of 2004, filed by the 1st plaintiff, seeking to have the defendants hand over the office at 333. A stay order was made to await the outcome in Kakamega HCCC No. 47 of 1999. He stated that he wanted the court to recognize them as the bona fide officials of the Church.

15. During cross-examination, he stated that they did everting legally and openly. He said that he had no documents to show that he was an official of the church. He said that Kakamega HCCC No. 47 of 1999 was settled out of court. He said that the objective of going to the Registrar of Societies was to get a new certificate, and that they used a notification of change of officials to get the certificate. He said that the issuance of the certificate was evidence that the application to change the particulars of officials was accepted. They then began to file returns, asserting that a stranger could not file returns. He asserted that they were the legitimate officials of the Church at the time the instant suit was filed in 2014. He said that the defendants had a Constitution, while the plaintiffs had their own. He said that according to him, it was their constitution that was recognized by the Registrar of Societies. He said that the 1st plaintiff was no longer High Priest, having removed himself in 2008, when he moved his operations from the Church compound to his home. He stated that a High Priest could be removed from office for misconduct or death or loss of soundness of mind.

16. At the close of the oral hearings, both sides filed written submissions, which I have read through, and noted the arguments made.

17. This is a classic case of a church leadership dispute, between two warring sides. It would appear that the dispute has raged for quite some time, for several suits have been filed in court over one thing or other. The instant suit revolves around who the bona fide officials of the Church were as at the date of its filing. This was prompted by the filing of a notification of change of Church officers by the defendants, with the Registrar of Societies, placing themselves on record in the place of the plaintiffs. Thereafter a certificate of registration of the Church was issued, and the defendants took over the duty of filing returns.

18. From the evidence tendered, it would appear that the certificate issued to the defendants in 2003/2004 was a duplicate of the earlier certificate, for it merely certified the status of the Church, in terms of its name. That was what the earlier certificate, which the 1st plaintiff had refused to deposit in court, had also purported to do. The content and substance of both certificates was the same. None of the two certificates purported to state who the legitimate officials of the Church were, and the latter certificate did not in any way purport to remove the officials then in office and replace them with a new set of officials. The certificate was just that, a document to certify that the Church was registered under the name Church Group of Light. The certificate is a mere extract of the contents of the file at the Registry of Societies, on the registration status of the Church. It is for that reason that the Registrar of Societies, in her letter dated 4th October 2019, said that both certificates were genuine. They emanated from her office, and they contained the same information. The only error pointed out related to date of the registration of the Church.

19. The defendants allege that they filed a notification of change of officials to provide a basis for being issued with the new or duplicate certificate. Officials of a registered society come into office by way of some process, provided for under some provision in the constitutionunder which the society operates. Although the defendants made a lot of play about being legitimate officials of the Church, they did not place before the court any single document to prove their legitimacy. A document demonstrating the process that brought them into office. A notice of a meeting perhaps, to elect or appoint Church office bearers. Minutes of such a meeting. Resolutions of such a meetings, showing the election or appointment of the defendants to the offices that they allege to hold. The notice of change of officials could only ride on minutes or resolutions or some document showing how they came to hold those positions. The mere filing of a notification of change of officials with the Registrar of Societies would not suffice. The defendants conceded that the plaintiffs were the officials the Church, before they, the defendants, purported to come into office. It behooved them, the defendants, to provide evidence that they had replaced the plaintiffs as Church officers, through some legitimate process, by presenting documents that demonstrated that. They did not. There is no evidence on record to support their claim to be Church officials.

20. From the material placed on record, including the oral testimonies, it is plain that there is only one Church. It bears the same name, it has the same certificate, one is original and the other a duplicate, and it has the same constitution. The impression created by the defendants, that there are two separate churches, is not supported by the evidence on record. Of course, there are two factions, one led by the plaintiffs and the other by the defendants. They conduct their church services at different venues, and have their head offices at different places, and each side has purported to have amended the Constitutionof the Church. However, in legal terms, the organization called the Church Group of Light is one; that stated in the certificate of registration, whether issued in 1972 or 1987 or 2013/2014, and, therefore the issue of the court recognizing one faction or the other as the legitimate church should not arise.

21. The wrangles exhibited in these proceedings are over leadership. I have here above preempted the discussion on who the legitimate officials of the Church are, by stating that the defendants, contrary to their assertions, have provided no proof whatsoever that they were bona fide officials of the Church, for they have placed no material on record relating to how they came to occupy the positions that they claim to hold in the Church. The Registrar of Societies is the custodian of records relating to registered societies, and oversees their operations. That office would be the proper place to get answers on who the legitimate officials of the Church are or were as at 2014. There is on record the letter the Advocates for the plaintiffs wrote to the Registrar, dated 5th April 2014, on the matter of the change of officers of the Church, and the Registrar wrote, on 22nd April 2014, stating that he only recognized the plaintiffs as the bona fide office bearers. Another letter is on record, from the Registrar, dated 20th June 2016, to the Advocates for the defendants, confirming that the plaintiffs were the legitimate officials of the Church. The letter goes on to state that the Notification of Change of Officials, that had been filed by the defendants on 20th March 2014, had not been approved. It went on to say that a meeting that had allegedly been held on 15th March 2014, where the defendants were purportedly elected, was an illegal meeting, for reasons that are given in the letter. In the letter, the Registrar gives notice to the defendants to cease acting as officials of the Church, pointing out that continuing to do so was in fact an offence, under section 24 of the Societies Act, Cap 108, Laws of Kenya. Clearly, the correspondence from the Registrar is plainly clear on who the legitimate officials of the Church were in 2014.

22. In view of everything that I have said above, it is my conclusion that the plaintiffs herein have overwhelmingly established their case for the orders sought. They are entitled to the prayers set out in their plaint dated 14th April 2014, as amended on 16th February 2016, and I hereby grant the said prayers. The counterclaim, dated 11th May 2015, is accordingly dismissed. The plaintiffs shall have the costs of the suit. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 13TH DAY OF MAY 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Mbaka, instructed by CO Samba & Co., Advocates, for the plaintiffs.Mr. Elung’ata, instructed by Elung’ata & Co., Advocates, for the defendants.