https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10019

Mbija (Deceased) & 5 others v Ambuso, Olonde, Orayo, Ngere, Samo, Opeme (Sued as office bearers of the Children of God Regeneration Church) & another (Civil Case 843 of 2002) [2026] KEHC 10019 (KLR) (Civ) (9 July 2026) (Ruling) Neutral citation: [2026] KEHC 10019 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case 843 of 2002 JN Mulwa, J July 9, 2026 Between Paul Ogola Mbija (Deceased) 1st Plaintiff Jared Omondi Mitiawre 2nd Plaintiff John Benson Ogutu 3rd Plaintiff George Odindo Mulo 4th Plaintiff Gabriel Amboso 5th Plaintiff Augustine Oketch 6th Plaintiff and Jeremiah Omolo Ambuso, John Olonde, Leonard Orayo, Maurice Ngere, Joshua Samo, John Opeme (Sued as office bearers of the Children of God Regeneration Church) 1st Defendant Registrar of Societies 2nd Defendant Ruling 1.Judgment in this 25-year-old case was delivered by this court on 6/11/2025. By the said judgment, a declaration was issued that the General Meeting held by the children of God Generation Church (1st Defendant) on 20/04/2002 was ultra vires and was in contravention of the church’s Constitution, and all resolutions resulting therefrom are null and void. Further, that the office bearers elected during the said meeting were revoked, with each party in the dispute directed to bear their own costs of the suit. 2.The 1st Defendant, being dissatisfied with the court's judgment, filed a Notice of Appeal dated 14/11/2025 as well a Memorandum of Appeal dated 19/11/2025. 3.By a Notice of Motion dated 19/11/2025, the 1st Defendant/Applicant sought orders that, pending hearing of the intended appeal:-1)Spent2)Spent3)An order of stay of execution of the judgment and decree pending inter partes hearing of the application.4)That pending hearing and determination of the intended appeal the execution of the judgment and decree delivered on 6/11/2025 be stayed. 4.The application is predicated upon provisions of Order 42 Rule 6 of the Civil Procedure Rules (CPR) and Section 1A, 1B and 3A of the Civil Procedure Act (CPA); and grounds on its face, as well as supported by the affidavit of Leonard Oyare, describing himself as an official of the 1st Defendant dated 19/11/2025. He posits that the appeal shall be rendered nugatory if the application is not allowed, that the Applicant will suffer loss as the judgment nullified all decisions, activities and investments undertaken by the Applicants officials, yet circumstances have so far changed, some plaintiffs have died while others left the church, arguing that implementation of the judgment shall be akin to handing over the church to strangers and/or disinterested parties. 5.Additionally he deposes that should stay orders be denied the Applicant members would be prejudiced as it impacts on their faith, marriages and weddings undertaken therein, and will affect entire families and third parties, and the Respondents will not suffer any prejudice, that implementation of the judgment will equally not render justice to them considering its ramifications should the orders not be granted. 6.Upon the above depositions, the court has been urged to allow the interim reliefs in the interest of justice. 7.The motion is opposed by a replying affidavit sworn on 9/02/2026 by George Odindo Mullo, describing himself as an official of the church. He posits that the applicants appeal is vexatious, that they too have rights to enjoy their fruits of judgment, and that the duly elected officials of the church have now been reinstated by the court’s judgment, that no evidence has been provided by the Applicant the demonstrate their purported absence from church or church related activities. 8.The deponent further posits that the application does not meet the threshold under order 42 CPR to wit, the delay in making the application has not been explained, and no demonstration of substantial has been evinced if orders sought are not granted. 9.Additionally, it is stated that grant of orders sought would cause undue hardship and tremendous strain to the worshippers of the church having litigated for over 23 years before the judgment was issued, that the orders sought are unwarranted. 10.The Respondents posit that from their own knowledge no appeal has been filed against the court’s judgment and or filed within statutory timeliness, hence in the interest of justice, the motion ought to be dismissed.The court directed parties to file submissions on the motion. Applicant’s Submissions 11.The Applicants submissions are dated 10/03/2026. One issue for determination, segmented into four, is flagged for determination. 12.On whether the intended appeal is arguable, it is submitted that upon the grounds of appeal evinced in the draft memorandum of appeal that the trial court failed to evaluate the evidence, failed to consider changed circumstances, that the orders have far-reaching retrospective effect. 13.On substantial loss, the Applicants submit that the impugned judgment nullified all decisions and actions of the church dating back to 2002 which affects decades of religion, social and institutional activities, would affect innocent third parties, that these constitute irreparable and disproportionate loss and suffering to the Applicant. 14.It is further submitted that no prejudice would be caused to the Respondents if the orders are granted, and lastly that the appeal will be rendered nugatory should stay of execution orders are denied. Respondents Submissions. 15.On their part, their submissions are dated 27/03/2026. The Respondents state that the intended appeal is vexatious, that no evidence of substantial loss has been evinced, that the Application does not meet requirements under Order 42 Rule 6 of the Civil Procedure Rules. 16.On compliance with the stated statutory provisions, it is submitted that the burden of proof lies with the applicants, in respect to each allegation, calling to aid decision in Mukuma V. Abuoga (1988) KLR 645. Further stating that no substantial loss would occur as no factors have been established that would create a state of affairs that would irreparably affect or negate the essential core of the Applicants in the appeal as held in Mukuma V. Abuoga (supra). 17.On security, it is submitted that the Applicant has not suggested or offered any security for due performance of the decree, as a sign of good faith. 18.For the foregoing, the court has been urged to find no merit in the Application under review. Analysis and Determination 19.The underpinning statutory provisions of law is Order 42 Rule 6 of the CPR. The conditions for grant of stay orders pending appeal are stated thus;a.The court must be satisfied that substantial loss may result to the applicant unless the order is made.b.Application has been made without unreasonable delay.c.Applicant must offer such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. 20.Substantial loss is the cornerstone of any application for stay of execution. The court in James Wangalwa & Another V. Agnes Naliaka [2013] eKLR held that;“…execution is a lawful process. The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the applicant as the successful party in the appeal……..” 21.Additionally, the Court of Appeal in Mukuma V. Abuoga (supra) stated, “Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory”. 22.This court in similar circumstances in the case or Mary Help of the Sick Mission Hospital V. Peter Thuku Kamau [202]eKLR held that the execution ordered by the Court would not render the intended appeal nugatory, as the orders sought were meant to protect the wide public interest; 23.Here, the Applicant is the 1st Defendant’s officials of the church. Its complaint and or claim is that the Special General Meeting convened by the 1st Defendant held on 20/4/2002, was against the Constitution of the Church, and the resolutions resulting therefrom be declared null and void. The 1st Defendant sought Permanent injunction compelling the 2nd Defendant, the Registrar of Societies, to revoke and withdraw the registration and confirmation of the new office bearers arising from the meeting of 20/04/2002. 24.The court notes that the events subject of the court’s judgment took place in April 2002, twenty four (24) years ago. It means in my estimation that the officials elected in the meeting of 20/04/2002 have been in office since then. 25.In its judgment dated 6/11/2025, the court made a finding at par. 33 thereof, that the said meeting was itself a nullity, there having been a suspension order of the meeting- P-ext. 5 (a) as adduced into evidence by PW1. That means therefore that the church officials who were in place prior to the impugned Special General meeting were reinstated into office; as those elected during the impugned meeting were unconstitutionally elected. 26.To that end, the orders issued – par. 45 pursuant to the judgment declared the meeting void, and all resultant election of new officials null and void. The 2nd Defendant (Registrar of Societies) was, in the court’s judgment directed to revoke and withdraw any new office bearers elected from the said meeting. 27.Following the judgment of the court, what substantial loss would the Applicants suffer by the orders restoring church officials who were in office prior to the election on 20/04/2002? Here, I am minded that there is a Notice of Appeal filed against the judgment dated 14/11/2025. It was filed within the statutory timelines. There is also a Memorandum of Appeal dated 19/11/2025. 28.The Respondent has raised an objection as to the validity of the alleged Memorandum of Appeal. The Applicant, despite reservations having been brought to fore by the Respondent has failed to offer clarity as to whether there is indeed a valid appeal filed and pending hearing by the Court of Appeal. The Applicant only needed to evince a duly filed Appeal by way of a citation of the appeal as filed at the Court of Appeal or any other appropriate manner. 29.It is worth to note that a Notice of Appeal is but only an intention to file an appeal by way of a properly filed Memorandum of Appeal. In the case Co-operative Bank Housing Co-operative Society V. Juliah Kaguri Ruchugo [2025] eKLR, and Abubaker Mohamed Al-Amin v. Firdans Siwa Somo [2018] KECA 202 (KLR), the courts held that where there existed no valid memorandum of appeal filed there was nothing upon which stay orders sought under Order 42 CPR Rule 6 could be anchored. 30.In advancing the said decisions, the court in Rosalinda Wanjiku Macharia V. James Kiingati Kimeni (suing as the Legal Representative of the Estate of Martin Muirun, (deceased) [2017] eKLR, that;“The prayer for stay of execution could only be canvassed after the appeal has been filed …” 31.Here, I concur with the Respondent’s submission that without demonstration by the Applicant that there is a competent appeal filed, the orders sought by the Applicant cannot be granted. The case of Mukuma v. Abuoga (supra) is called to aid. 32.The Applicant in my estimation has failed to demonstrate what substantial loss it would suffer by having the church being run by the officials prior to the April 2002 special general meeting. In any event, the Applicant church - has not been barred in the impugned judgment from convening a properly convened Annual General Meeting as per its constitution, for purposes of election of new office bearers, which taking into account the last such meeting was prior to the special general meeting over 24 years ago. 33.Lastly, on the matter of provision for security as a condition precedent for an order of stay of execution pending appeal, I need not interrogate this in detail. No offer was made in whatever mode. Under Order 42 Rule 6 (b) CPR, the court is mandated to consider any offer that may be given, and ultimately placed to determine the appropriate security. 34.Here the court having found no sign of existence of a competent appeal on record, it would be unnecessary to go unto the security that the court may determine as pending hearing of the intended appeal. A Notice of Appeal does not remain valid indefinitely, nor does it demonstrate the existence of a competent appeal. In any event, a Notice of Appeal is time bound. Under Court of Appeal Rules 2022, it remains valid for 60 days, and may be extended upon application. The applicant has shied away from bringing to fore if indeed there exists a valid appeal to the Court of Appeal. 35.That said, and for the foregoing, I find no merit in the Applicant’s application dated 19/11/2025. It is dismissed. 36.On costs, the court once again notes that the dispute hence is between, and by members of the same church, the 1st defendant. I shall not burden them with an order of costs, as against each other. The court finds it appropriate to direct each party to bear own costs of the application. Order accordingly. *DELIVERED DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF JULY 2026.**……………………JANET MULWA.JUDGE