https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7450

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL DIVISION** **CIVIL CASE NO. E076 OF 2024** **BENJAMIN NJOROGE MBURU.................PLAINTIFF/RESPONDENT** **-VERSUS-** **REV. DR. ROBERT WAIHENYA** **(Sued as the SECRETARY GENERAL of the PRESBYTERIAN CHURCH OF EAST AFRICA).............................................................1ST DEFENDANT** **RT. REV. PATRICK THEGU MUTAHI** **(Sued as the MODERATOR of the GENERAL ASSEMBLY of the PRESBYTERIAN CHURCH OF** **EAST AFRICA).........................................2ND DEFENDANT/APPLICANT** **THE REGISTRAR OF** **SOCIETIES.......................................................................3RD DEFENDANT** **RULING** **The Application** 1. **Rt. Rev. Patrick Thegu Mutahi (sued as the Moderator of the General Assembly of the** **Presbyterian Church of East Africa)** (hereafter the Applicant) has moved this court by way of the Notice of Motion dated 10/02/2026 (the Motion). The Motion is supported by the grounds stated on the face of it and in the four (4) supporting affidavits separately sworn by the Applicant, **Rev. Audfax Mawira Kirimi,** **Rev. Stephen Ndoria,** and **Rev. Githumu Munyambu.** 2. The Motion seeks the following orders: 3. ***THAT the suit be struck out in its entirety.*** 4. ***THAT the Honourable Court be pleased to declare that the Plaintiff has committed perjury.*** 5. ***THAT the Honourable Court be pleased to order the Director of Criminal Investigations to investigate the acts of perjury committed by the Plaintiff and the Director of Public Prosecutions to take the necessary action.*** 6. ***THAT the Honourable Court be pleased to issue any other order it may deem fit.*** 7. ***THAT the costs of the suit be borne by the Plaintiff.*** 8. The Applicant has stated in his supporting affidavit that the present suit is not competently before this court for the primary reason that **Benjamin Njoroge Mburu** (hereafter the Respondent) is not a member of the Presbyterian Church of East Africa (PCEA) and has not tendered any proof of his membership in any event, under the provisions of the Practice and Procedure Manual of PCEA. That on the contrary, the Respondent is a member of the Catholic faith. 9. The Applicant has thus stated that in view of the non-membership status of the Respondent, he lacks the legal standing to institute the present suit; that by purporting to file the claim as an alleged member of PCEA, he has committed perjury for which he ought to be found liable and punished accordingly and that in any event, it has not been demonstrated that the Respondent has attempted to exhaust the internal dispute resolution mechanisms available to PCEA in addressing his complaint. 10. In his supporting affidavit, **Rev. Audfax Mawira Kirimi** deposed thathe is a Parish Minister of PCEA Kikuyu Township Parish; that the Respondent is not a recognized member of PCEA and is therefore a stranger to the present proceedings; that in order for one to become a recognized member of PCEA, he or she must undergo certain strict processes set out in the Practice and Procedure Manual of PCEA, namely the attendance of catechism classes followed by confirmation as a church member and registration thereof; that there are no records of the Respondent ever having undergone any of the requisite processes and therefore, the Respondent lacks the *locus standi* to bring this suit and ought to be found culpable for perjury. 11. On the same limb, **Rev. Stephen Ndoria** has similarly stated in his supporting affidavit that through his interactions with members of PCEA and in his capacity as Moderator of Nyandarua Presbytery of PCEA and a member of the Business Committee of PCEA, he was able to ascertain that the Respondent is not a member of the Church and hat upon making further inquiries, he was able to ascertain that the Respondent is in fact an attendee and active member of the Don Bosco Catholic Church in Nairobi, which position was further confirmed by the Parish Priest at Don Bosco, Rev. Father Henry Mwaniki. 12. **Rev. Githumu Munyambu,** in his supporting affidavit**,** has deposed that upon institution of the present suit, he made various inquiries regarding the Respondent’s status and finally established that he was baptized at the Catholic Church, Ruchu Parish; and that upon further engaging with Rev. Father Joseph Mwangi of Ruchu Parish, the deponent confirmed that the Respondent is indeed a member of the Catholic Church and an attendee of the Don Bosco Catholic Church. **The Preliminary Objection** 1. The Applicant has also filed a notice of Preliminary Objection (PO) of similar date, challenging the competency of the suit on the following grounds: ***1. THAT the Plaintiff lacks the*** *locus standi* ***to institute the suit herein.*** ***2. THAT the Plaintiff has no identifiable right to institute the claim herein.*** ***3. THAT the suit is void*** *ab initio****.*** ***3. THAT the Plaintiff is not a member of the PRESBYTERIAN CHURCH OF EAST AFRICA.*** **Replying Affidavit** 1. The Respondent has opposed the Application through a Replying Affidavit sworn on 25/02/2026 in which he has deposed that he has at all material times been an adherent and attendee of PCEA Kikuyu Township Parish where he worked on a construction project of the said Parish; that the PCEA Practice and Procedure Manual distinguishes between ‘**members in full communion’** and **‘adherents’** which he defined as ‘**baptized persons connected with the Congregation though not admitted to full communion.**’ 2. He has deposed that pursuant to his regular attendance and participation at PCEA Kikuyu Township Parish, he is an adherent, notwithstanding the fact that he is not listed in the roll of members for full communion. 3. It is the Respondent’s averment that his reference as ‘**a member of PCEA Kikuyu Township Parish’** in the plaint was made in an ordinary lay sense of the word and was never intended to mislead the court or parties herein. 4. The Respondent has denied the allegations of perjury made against him and stated that the issue whether his name appears on the roll of membership of PCEA is purely an administrative issue and does not in any manner defeat his legal standing before the court or nullify any proceedings so far undertaken in this suit and that he has a legitimate interest in the governance of PCEA. 5. The Respondent has faulted the Applicant for belatedly raising the issues of *locus* *standi* and perjury when the documentation being relied upon to support the instant Motion was in his possession at all material times and therefore ought to have been raised at the earliest opportunity; that the striking out of pleadings is a draconian and drastic measure which is generally discouraged and therefore, the instant Motion is unmerited and ought to be dismissed with costs. **Submissions** 1. The Motion and the PO were canvassed together through written submissions. In support of the Motion and the PO, the Applicant has submitted that the Respondent is not a member of PCEA and therefore lacks the *locus standi*to bring this claim; that Clauses 7.3 and 7.7 of the Practice and Procedures Manual of PCEA clarify who constitutes members and active members of PCEA respectively; that the Respondent does not fall in either category and therefore lacks the rights and privileges extended to members and that sufficient documentation has been tendered to support this position. 2. The Applicant has relied on the case of **M’Ikunyua & another v Registrar of Societies; Wanyoike & 5 others (Interested Parties) [2025] KEHC 12048 (KLR)** where it was held that a non-member of a society has no legal authority to challenge its internal affairs. The Applicant has also urged this court to be persuaded by various other decisions where the term ‘*locus standi’* was elaborated, including the decisions in **Daykio Plantations Limited v National Bank of Kenya Limited & 2 others [2019] KEELC 37 (KLR)** and **Ndungu & 6 others v Mwangi & 2 others; Nderi (Interested Party) [2024] KEELC 13808 (KLR)** where the respective courts emphasized that a suit is deemed incompetent in the absence of demonstration of legal capacity to institute the same. 3. The Applicant argued, further, that the attempts by the Respondent at invoking Articles 22 (on enforcement of the Bill of Rights) and 258 (on enforcement of the Constitution) of the Constitution of Kenya, 2010 cannot stand, since the plaint in this suit does not feature any allegation of an infringement or violation of constitutional rights and that it is apparent that the Respondent instituted the present claim in his personal capacity and for his own personal interest. 4. On the subject of internal dispute resolution mechanisms, it is the Applicant’s contention that Section 18 of the Societies Act makes provision for the procedure of resolving disputes regarding the lawfulness of officials of a society; that the Constitution of a society ordinarily sets out the internal dispute resolution mechanisms in place for that particular society; that while the Respondent pleaded in his plaint that internal dispute resolution mechanisms were exhausted sometime in or about March 2024, he did not specify which of these were actually applied and that the true position is that the Respondent neither engaged the leadership of PCEA nor invoked the powers of the Registrar of Societies under Section 18 prior to filing the suit. 5. It was submitted that by purporting to be a member of PCEA through his pleadings and verifying affidavit when he was in fact not, the Respondent committed perjury for which he ought to be punished. The Applicant relied on **Mugiira v National Biosafety Authority; Kinyamario (Perjurer); Inspectorate of State Corporations (Interested Party)** in which the court upon finding a deponent guilty of perjury, proceeded to expunge his replying affidavit from the record. 6. On all the foregoing grounds, the Applicant has deemed the present suit as being void *ab initio* and deserving of an order striking it out for having been brought prematurely and in the absence of the requisite legal standing. 7. The Respondent, in opposing both the Motion and PO, relied the case of **Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696** on the applicable principles relating to preliminary objections. The Respondent argued that the instant PO does not raise pure points of law and requires the tendering and calling of evidence to support it should fail. 8. In regard to the Motion, the Respondent has anchored his submissions on the decision in **DT Dobie & Co. (Kenya) Limited v Muchina & another (Civil Appeal 37 of 1978) (1980) KECA 3 (KLR)** where the Court of Appeal held that the summary dismissal or striking out of a suit is a drastic measure and that courts should strive to sustain suits rather than to dismiss them summarily. He also relied on Order 2, Rule of the CPR on the striking out of pleadings and suits. 9. In respect of *locus standi*, it is the Respondent’s argument that no law exists prohibiting him from filing suit to challenge the actions by the Defendants herein and in particular, the alleged violation of the relevant provisions of the Societies Act; that, the plaint raises allegations of violation of the Respondent’s right to access services of reasonable quality from the holder of Honourary Treasuer office of PCEA and further alleges that the actions and/or omissions of the Defendants herein affect not only the Respondent but other members of PCEA as well as the general public and that the Respondent has the *locus standi* to bring the present suit, under Article 22 and 258 of the Constitution of Kenya and the court ought to disregard the contrary averments made by the Applicant. 10. Regarding the subject of membership or otherwise, it is the Respondent’s contention that the present suit does not in any way concern itself with the membership of PCEA as purported by the Applicant; that by bringing the instant Motion, the Applicant is purely attempting to divert the court’s attention from the real issues in controversy and that in any event, the Respondent has demonstrated that he is an adherent member of PCEA owing to his regular attendance and participation in the activities undertaken at PCEA Kikuyu Township Parish. 11. The Respondent has contended, further, that neither the Applicant nor his counterparts have tendered Certificates of Membership proving their membership in PCEA or as a demonstration that such Certificates are truly issued as proof of membership; that the averments and arguments challenging his membership are a mere afterthought on the part of the Applicant; that the he had exhausted the alternative dispute resolution mechanisms as clarified in paragraph 14 of his plaint where he pleaded that the same had been exhausted in or about March, 2024 and that either way, the present dispute does not necessarily concern the membership of PCEA. 12. The Respondent has denied committing any perjury as alleged by the Applicant. He urged this court to dismiss both the Motion and the PO and award costs to him. **Analysis and Determination** 1. I have carefully considered the instant Motion, the PO and the rival submissions as well as the authorities cited. I am guided that a PO must meet the threshold of **Mukisa Biscuit Company v West End Distributors Limited (1969) EA 696** and **Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR**, in that it must be founded on ***a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.*** 2. The Applicant herein has raised a PO to challenge the competency and validity of the suit on grounds that the Respondent lacks the *locus standi* to bring the instant suit since he is purportedly a non-member of PCEA, which allegation has been denied by the Respondent, who has maintained that he has the requisite legal standing to bring this suit and therefore the suit is competently before this court. 3. To my mind, all the issues are related in that the Motion and the PO challenge the competency of the suit herein for reasons that the Respondent lacks *locus standi* to bring the same for reasons that he is not a member of the PCEA Church and that in so claiming, the Applicant has committed perjury. The Respondent has denied those allegations and has argued that he is a member of the PCEA and therefore the suit is competently before the court. 4. I have considered this matter carefully. It is clear to my mind that to resolve the issue as to whether the Respondent is a member of the PCEA or not will require evidence for and against that issue. It is only during a full hearing that the evidence adduced can be subjected to cross-examination to test its veracity and guide the court in arriving at the truth. 5. Where an issue requires arguments for or against in order to resolve it, it cannot be termed as a pure point of law. In such a scenario, the threshold in the **Mukisa Biscuits case** cannot be met**.** It is my considered view, therefore, that the issue as to whether the Respondent is a member of the PCEA church or not is a matter that must be determined after hearing all the parties on the issue in a full trial. Therefore, this issue does not meet the threshold of a PO as defined. 6. Consequently, I find that this issue does not meet the threshold of a PO and therefore the PO raised herein lacks merit and must fail. 7. Turning to the Motion, I have read Order 2 Rule 15(1) of the CPR, which provides that: ***At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—*** ***(a) it discloses no reasonable cause of action or defence in law; or*** ***(b) it is scandalous, frivolous or vexatious; or*** ***(c) it may prejudice, embarrass or delay the fair trial of the action; or*** ***(d) it is otherwise an abuse of the process of the court,*** ***and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”*** 1. The discretion of the court is invoked in determining whether to or not strike out a pleading. It is trite that the discretion of the court must be exercised judiciously. I am guided by the Court of Appeal decision in **The Co-Operative Merchant Bank Ltd v George Fredrick Wekesa (Civil Appeal No. 54 of 1999)** where that Court stated that, inter alia, ***that striking out a pleading is a draconian act, which may only be resorted to, in plains cases and that a court may only strike out pleadings where they disclose no semblance of a cause of action or defence and are incurable by amendment.*** 2. Further, in **Yaya Towers Limited v Trade Bank Limited (In Liquidation) [2000] eKLR** the Court of Appeal expressed itself in the following manner: ***“A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the Court, it must be allowed to proceed to trial....It cannot be doubted that the Court has inherent jurisdiction to dismiss that, which is an abuse of the process of the Court. It is a jurisdiction, which ought to be sparingly exercised and only in exceptional cases, and its exercise would not be justified merely because the story told in the pleadings was highly improbable, and one, which was difficult to believe, could be proved.”*** 1. Likewise, in **D.T. Dobie & Company Kenya Limited v Joseph Mbaria Muchina & Another [1980] eKLR**, cited in the Respondent’s submissions, the Court (**Madan JA**,) stated that: ***“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action, and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it.”*** 1. In the instant matter, the record shows that the prayer for striking out the suit is based on similar grounds as those contained in the PO, namely that the Respondent is a non-member of PCEA and therefore lacks the *locus standi* to bring the present claim and that the Respondent did not exhaust the internal dispute resolution mechanisms available in the PCEA Constitution, prior to lodging the suit. 2. I have considered the arguments of the parties in support of the Motion and against it. On his part, the Respondent has stated that he is an adherent member and attendee of PCEA and thus has the legal standing to bring the claim and that that the internal dispute resolution mechanisms available were exhausted before the suit was filed. 3. From the record, it is clear that the Respondent brought the present suit vide a plaint dated 6/04/2024 by and large challenging the nomination and recommendation for the appointment and/or installation of David Nderitu Ndumo as Honorary Treasurer of PCEA. 4. From the record, it is also clear that the Applicant has all along participated in the proceedings relating to this suit since its inception in the year 2024. It took the Applicant some time before he could raise the issue of lack of legal standing by the Respondent. I am not able to understand what motivated the Applicant to delay in raising this issue at the earliest opportunity. I may as well agree with the Respondent that the prayer by the Applicant to strike out the suit is an afterthought on the part of the Applicant, especially coming now after a period of about two years since the suit was filed. 5. Besides, the issue of *locus standi* of the Respondent based on the allegations of his being a non-member of the PCEA Church has been determined at the PO stage. 6. My conclusion on this Motion is that the Applicant has not met the threshold for striking out the suit stipulated under **Order 2, Rule 15** **CPR**. Consequently, I decline granting *prayer (i)* of the Motion seeking to have the suit struck out. 7. As regards the issue of perjury, I have considered the Motion and the arguments for and against. This issue also rides on the claim that the Respondent purportedly held himself out as a member of PCEA when he is not and as a result, committed perjury. To my mind this is a matter that can be adequately resolved after receiving all the evidence and appropriate action taken, should the court find the allegation to be proved. In my considered view, the Applicant will not suffer any prejudice in waiting for full hearing in order to determine all the issues arising from this dispute. 8. I note that prayer 3 of the Motion rides on granting prayer 2 of the Motion. Given that prayer 2 has not been granted, there is no need of determining prayer 3 of the Motion. 9. Consequently, the Notice of Preliminary Objection and the Notice of Motion, both dated 10/02/2026, are hereby dismissed with costs to the Respondent. 10. It is so order4ed. **Dated, signed and delivered this 21st May 2026.** **S. N. MUTUKU** **JUDGE** **In the presence of:** 1. Mr. Njaramba for the 2nd Defendant/Applicant 2. Mr. Mwangi for the 1st Defendant/Respondent 3. Mr. Mochu for the Plaintiff/Respondent