[2020] KEHC 1255 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Coram: D. K. Kemei - J

CIVIL SUIT NO. 15 OF 2019

MUEMA NDUNGI.................................................................................1ST APPLICANT

REV PETER MWANGANGI...............................................................2ND APPLICANT

VERSUS

BISHOP RAPHAEL KITUVA...........................................................1ST RESPONDENT

REV. BONIFACE MBWANG’A.......................................................2ND RESPONDENT

WILSON MAILU................................................................................3RD RESPONDENT

WILLIAM MUSYOKA.......................................................................4TH RESPONDENT

HENRY TANUI...................................................................................5TH RESPONDENT

BENSON MUINDI..............................................................................6TH RESPONDENT

PHILIP IVULI.....................................................................................7TH RESPONDENT

DANIEL MWANIA.............................................................................8TH RESPONDENT

RULING

1. The ruling relates to the notice of motion application dated 28. 7.2020 and what remains for determination is prayer No. 3 which is to the effect that the court grants an injunction restraining the respondents whether jointly or severally or by their authorized agents and or servants from making further withdrawals from account No. 012xxxxxxxxxxxx held at National Bank of Kenya, Harambee Avenue Branch or dealing in any way with the proceeds of the sale of LR No. 36/VII/106I (I.R. 123210) and LR No. 36/VII/10062 to be paid or already paid pending the hearing and determination of the main suit.

2. The grounds in support of the application stated that applicants are members of Good News Church of Africa and that the respondents both jointly or severally had been irregularly withdrawing money from the subject bank account and putting the same into projects not approved at exaggerated costs. It was stated that it was discovered that the respondents received over Kshs 100,000,000/- that they failed to account for and yet they have a duty to submit Annual Audited financial accounts that they had failed to do so. It was stated that unless restrained the respondents shall continue wasting money in the subject account thereby causing irreparable damage.

3. In support of the application was an affidavit deponed by the 2nd plaintiff Peter Mwangangi on 28. 7.2020. It was averred that the subject bank account held the proceeds of the sale of church land in Eastleigh where the same had been banked since 2017. According to the deponent, the respondents had been receiving rent into personal accounts for church houses in Pumwani as evidenced by one deposit slip (PM2). The deponent pointed out that the respondents in breach of the current church constitution had put money in projects not approved for instance they had purchased plots in Mlolongo at an exaggerated price way above the current market value.

4. In opposition to the application a replying affidavit deponed on 16. 10. 2020 by Raphael Nzuki Kituva, who is stated to be the Archbishop of Good News Church of Africa. It was averred that disputes in administration of the church ought to be handled by the church council as provided for by the church constitution. It was averred that the applicants rushed to court yet there was an elaborate mechanism in the Church constitution. It was pointed out that the 1st to 3rd defendants were elected for a 5 year period and are members of the executive council that makes decisions on church expenditure. It was averred that the accounts of the church (RNK1) are sent to the various church councils and it was not true that the defendants misappropriated the funds as alleged. According to the deponent monies withdrawn are accounted for by the various councils and that the plaintiffs are not members of any of the councils. It was pointed out upon advice from his counsel on record that by dint of Article 7. 6 of the Church constitution, the plaintiffs ought to exhaust internal mechanisms hence they are non-deserving of the orders sought. The deponent denied receiving rent in personal accounts.

5. In rejoinder was an affidavit deponed on 21. 10. 2020 by Peter Mwangangi. The deponent denied not exhausting internal dispute resolution mechanisms and averred that the applicants as aggrieved members tried to have their grievances addressed by church administration but the same elicited haughty responses as evidenced by PM1- a letter disbanding Mutomo RCC. It was averred that the applicants sought indulgence of the church leadership to respond to certain issues vide letters marked PM2 and that there was no response hence necessitating the filing of the suit. It was pointed out that there was a suit filed in the magistrates court (PM4) that barred the plaintiffs and other members from attending the church.

6. The application was canvassed vide written submissions. Learned counsel for the applicant framed two issues for determination; firstly, whether the court is seized of the matter and secondly whether the applicants satisfied the requirements for grant of injunction orders. In respect of the 1st issue, counsel took issue with the respondents citing of provisions of their constitution that is the subject of this dispute. Counsel also took issue with the failure of the respondents to mention the aspect of internal remedies at an earlier stage. In placing reliance on the case of Hesborn Njera & Another v Tobias Ochola & Another (2020) eKLR, where it was stated that

“24. If we are to presume that the Plaintiffs had first exhausted all the laid-down procedures for in-house dispute resolution within the church structure, then the Plaintiffs cannot be barred from instituting these proceedings.

25. Even if the court had to first ascertain whether or not the Plaintiffs had, indeed, exhausted the dispute resolution mechanisms set out in the Church Constitution, it would not be open to the defendants to raise the alleged failure to utilize those mechanisms as a ground for preliminary objection.

Counsel argued that the court was seized of the instant matter.

7. Learned counsel in the 2nd issue submitted that the applicant met the threshold for grant of injunctory orders in line with the case of Giella v Cassman Brown (1973) EA 358. According to counsel, the applicant met the prima facie case test as they demonstrated misappropriation of funds. In placing reliance on the case of Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 others [2016] eKLR,it was submitted that the applicants will suffer irreparable loss as the misappropriated monies will not be recovered. The court was urged to allow the application.

8. Learned counsel for the respondent in their submissions framed three issues for determination. Firstly, whether the plaintiffs had exhausted the internal dispute mechanisms provided; Secondly, matters of religion and conscience should have their autonomy respected and not subjected to determination of the court and finally whether the applicant had met the conditions for grant of injunctions. In respect of the 1st issue, reliance was placed on Clause 2. 7 of the Church Constitution as well as section 9(2)(3) and (4) of the Fair Administrative Action Act that provides as follows;

“(2) The High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.

(3) The High Court or a subordinate Court shall, if it is not satisfied that the remedies referred to in subsection (2) have been exhausted, direct that applicant shall first exhaust such remedy before instituting proceedings under sub-section (1).

(4) Notwithstanding subsection (3), the High Court or a subordinate Court may, in exceptional circumstances and on application by the applicant, exempt such person from the obligation to exhaust any remedy if the court considers such exemption to be in the interest of justice.

9. Further reliance was placed on the case of Kimani Wanyoike v Electoral Commission & Another (1995) eKLRin submitting that the applicant ought not to be rewarded for failing to utilize the internal mechanisms.

10. Learned counsel in respect of the 2nd issue invoked Article 32 of the Constitution as well as the case of Hinga & Another v PCEA Thro Rev Njoya & Another (1986) KLRin support of the submission that fronted non-interference of the court in church or social societal affairs. The court was urged not to interfere in church matters. In respect of the 3rd issue, it was submitted that the account that the applicants sought to freeze was the church main account and as such the order would cripple the church. It was submitted that the applicants had not demonstrated that funds had been misappropriated hence had not demonstrated a prima facie case. It was submitted that the applicant had not demonstrated what harm they would suffer if the orders sought are not granted. The court was urged to dismiss the application.

11. Having considered the pleadings on record together with the annextures and the submissions of the parties, the issues to be determined are whether the court has jurisdiction to entertain the application; whether the application has merit and what orders the court may grant.

12. The applicant as per the plaint are members of Good News Church of Africa whereas the 1st to 3rd respondents are representatives of the General Church Council and that the 4th to 8th respondents are elected trustees of the Good News Church of Africa. I have seen that the Church was registered as a society under the Societies Act CAP 108 and that the office bearers are stated in the letter dated 2. 9.2020 that is annexure RNK1.

13. Section 19 of the Societies Act CAP 108 provides for the requirement that a society registered under the Act ought to have a constitution and in that regard I have seen a constitution of the Church that is to the effect in clause 4. 0 that membership is open to all Christian believers. The membership attracts a registration fee for admission as per clause 4 of the constitution. The petitioner is stated to have become a member and that the mentioned constitution states that disputes ought to be handled vide the church as evidenced in Clause 7. 6 of the constitution.

14. It is well established that courts will not interfere with the internal affairs of voluntary associations. Thus, “when a plaintiff challenges a voluntary organization’s decision, the case will be dismissed as non-justiciable unless the plaintiff alleges facts showing (i) the decision was inconsistent with due process, or (ii) the organization engaged in arbitrariness, fraud, or collusion.” McAdoo v. Univ. of N.C. at Chapel Hill, 225 N.C. App. 50, 72, 736 S.E.2d 811, 825 (2013).

15. The charter, articles of association and bylaws of an association may constitute a contract between the organization and its members wherein members are deemed to have consented to all reasonable regulations and rules of the organization, traditional rules of contract. Interpretation applies when assessing whether the church followed its own internal rules and procedures. See Wood v Odessa WaterworksCo (1889) 42 Ch D 636. The intention of the parties must necessarily be found within the contract or the statute of the by-laws or whole written instrument that set up the church. This would mean that in invoking Clause 7. 6 of the Church Constitution, at first instance the court could not inquire into the affairs of the church. Were the internal mechanism employed? To determine whether the respondents followed the church’s own internal rules and procedures would necessitate a look at the adopted procedures.

16. From the evidence, it is not possible to tell one way or the other whether the church mechanisms were used to settle the disputes that are presented in the plaint. If the same is yet to be done then it would be an abuse of court process to have two parallel processes running at the same time meaning the application would be premature. See the case of East Africa Pentecostal Churches Registered Trustees & 1754 Others v Samuel Muguna Henry & 4 Others (2015) eKLR.

17. In the case of Republic vs. the Commissioner of Lands, ex parte Lake Flowers Limited (Nakuru HC Misc. Application No. 1235 of 1998) it was held that the availability of other remedies can be an important factor in exercising whether or not to grant the relief.

18. The gravamen of the applicants seems to be on the issue of audited accounts, misappropriation of monies and in my view, section 29 of the Societies Act addresses the concerns of the applicants as it requires the society to give audited accounts during the Annual General Meeting. In addition, section 30 of the Act obligates the society to furnish the registrar with audited accounts whereas section 31 permits the registrar to request for audited accounts of the society. It is my view that the applicants had the option to approach the registrar for the required information so as to be armed with the information they require. As at this point in time, it is not possible to say with certainty that there has been misappropriation; what exists seems to be mere suspicion. The sections state as follows;

“29. Meetings of societies

(1) Every registered society shall, at least once in every year, hold a general meeting to which all its members shall be invited, and shall at such meeting—

(a)render a full and true account of the moneys received and paid by the society, such account being audited in accordance with the rules of the society; and

(b) cause to be elected or appointed all such officers, trustees and auditors and, where applicable, such committees as are required in accordance with the constitution and rules of the society.

(2) Any registered society which contravenes subsection (1) of this section shall be guilty of an offence.

30. Annual returns

(1) Every registered society shall furnish annually to the Registrar, on or before the prescribed date, such returns, accounts and other documents as may be prescribed.

(2) If any return, account or other document furnished under subsection (1) of this section is incomplete in any material particular, it shall be taken not to have been furnished for the purposes of subsection (1) of this section.

(3) Any registered society which contravenes subsection (1) of this section shall be guilty of an offence.

(4) Any person who wilfully makes or orders or causes or procures to be made any false entry in or omission from any return, account or other document furnished under this section shall be guilty of an offence and be liable to a fine not exceeding ten thousand shillings or to imprisonment for a term not exceeding one year, or to both such fine and such imprisonment.

31. Registrar may call for information and accounts

(1) Where the Registrar has reasonable cause to believe that circumstances have arisen which render it expedient for the proper performance of his functions under this Act so to do, he may, by order in writing, require any registered society to furnish him with—

(a) a true and complete copy of its constitution and rules;

(b) a true and complete list of its officers and members;

(c) a true and complete copy of the minutes of any meeting held by the society at which officers of the society were elected or appointed or were ostensibly appointed or elected;

(d) a true and complete return of the number of meetings held by the society in Kenya within the period of six months immediately preceding the date of the order, stating the place or places at which such meetings were held;

(e) duly audited accounts of the society covering such period as he deems necessary for the purpose for which the order is made;

(f) such other accounts, returns and other information as may be prescribed.

(2) An order given under subsection (1) of this section shall require compliance therewith within a specified period (not being less than twenty-one days in respect of the documents specified in paragraphs (a), (b), (c), (d) and (f), and not less than sixty days in respect of the documents specified in paragraph (e) of that subsection): Provided that the Registrar may, on application made to him, extend the period.

(3) Where the Registrar ordered duly audited accounts under paragraph (e) of subsection (1) of this section, the cost of the audit shall be paid out of the funds of the society in respect of which the order is made, unless the Registrar otherwise directs.

(4) A society which, on the ground of its failure to comply with an order to furnish duly audited accounts under this section, has had its registration cancelled under section 12 of this Act shall not again be registered, and no society which, in the opinion of the Registrar, is a successor of such a society, shall be registered, unless in either case, in addition to compliance with the provisions of this Act concerning registration, the application for registration is accompanied by the duly audited accounts required by the order.

(5) Any registered society, which fails to comply with an order given under subsection (1) of this section shall be guilty of an offence.

(6) If any information or document furnished to the Registrar in pursuance of an order given under this section is false, incorrect or incomplete in any material particular there shall be deemed to have been no compliance with such order.

(7) In this section, the expression “duly audited” means audited by a person approved by the Registrar.

19. The applicant has sought for an injunction and I deem it unnecessary to consider the prayer for injunction in view of my analysis above that the claim is not justiciable. Their gravamen has been amply addressed by the laws provided for in paragraph 18 above.

20. The Black’s Law Dictionary defines “justiciability” as “proper to be examined in courts of justice”. In the same dictionary “justiciable controversy” is defined as “a controversy in which a claim or right is asserted against one who has an interest in contesting it” or “a question as may properly come before a tribunal for decision”.

21. In Patrick Ouma Onyango & 12 Others v the Attorney General & 2 Others, Misc. App. No. 677 of 2005, the High Court endorsed the doctrine of Justiciability as stated by Lawrence H. Tribe in his book entitled American Constitutional Law, 2nd Edition, p. 92 that:-

“In order for a claim to be justiciable…, it must present a real and substantial controversy which unequivocally calls for adjudication of the rights asserted… Finally related to nature of the controversy is the ‘political question’ doctrine, barring decisions of certain disputes best suited to resolution by other government actors.”

22. It is apparent that the applicants have not exhausted the procedure provided for by the church constitution. I find the applicants do not have the luxury to choose which forum to approach in their quest to call the respondents to account regarding the church matters. They should first exhaust the channel specifically provided for by the constitution of the church. The applicants have rushed to the courts prematurely.

23. In the result it is my finding that the plaintiff/applicants application dated 28. 7.2020 lacks merit. The same is dismissed with costs.

It is so ordered.

Dated and delivered at Machakos this 3rd day of December, 2020.

D. K. Kemei

Judge