[2022] KEHC 3136 (KLR)

Nguli Suing as the representative of Jesus for life Foundation Ministry Church, Kitui & another (Suing as the representative of Jesus for life Foundation Ministry Church, Kitui) v Mailu & 3 others (Civil Appeal E002 of 2022) [2022] KEHC 3136 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3136 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Appeal E002 of 2022

RK Limo, J

May 19, 2022

Between

Robert Kitonga Nguli Suing as the representative of Jesus for life Foundation Ministry Church, Kitui

1st Applicant

James Mwendwa Maweu

2nd Applicant

Suing as the representative of Jesus for life Foundation Ministry Church, Kitui

and

Nicholas Muoki Mailu

1st Respondent

Michael Ndambuki

2nd Respondent

Stephen Musembi

3rd Respondent

Elkanah Mogire

4th Respondent

Ruling

1. Before Me, is a Notice of Motion dated 20th April 2022 seeking for the following reliefs namely: -i.Spentii.Spentiii.That pending the hearing and determination of this application and the suit, this Honourable Court be pleased to issue an ex-parte order that the Defendants herein either by themselves of their agents, do remove from the doors of the main sanctuary and of the pastor’s office of Jesus for Life Foundation Ministry, Kitui the padlocks they have placed there and do allow access by the Plaintiff’s herein and other church members to the said premisesiv.That pending the hearing and determination of this application and the suit, this Honourable Court be pleased to issue an order of injunction barring the Defendants herein by themselves or their agents from accessing/ coming near the premises of Jesus for Life Foundation Ministry Church Kituiv.That pending the hearing and determination of this application and the main suit herein, this Honourable Court be pleased to issue an order of injunction prohibiting the Defendants herein by themselves of their agents from disrupting the worship and church service of Jesus for Life Foundation Ministry, Kitui Branchvi.That the Officer Commanding Police Station (OCPD) Kitui do effect and supervise the compliance with the orders of this Honourable Court hereinvii.That the costs of this application be awarded to the Plaintiffs/Applicants.

2. The Applicants have listed grounds on the face of their application and the grounds are summarized as follows: -a)That the defendants/respondents have defected from Jesus for Life Foundation Ministry Kitui Branch for unknown reasons and have purported to ex-communicate the first plaintiff/applicant and stop him from ministering in the church.b)That the respondents have transformed and withdrawn from the current Assembly and shifted their allegiance to El-Bethel Victory Church.c)The applicants term the respondents’ move as illegal and blatant violation of the law.d)That the respondents went on Sunday on the 17th April, 2022 and disrupted service and caused chaos before later placing additional big padlocks on the church premises thus barring everybody including the plaintiffs from accessing the church.e)The Plaintiff/applicants have expressed fears that unless the defendants are stopped, they will continue with their illegal activities to the detriment of worshippers.f)That unless the premises are unlocked and the defendants/respondents barred from disrupting their worship service, their right to worship, assemble and religion would be prejudiced.

3. The applicants have sworn a supporting affidavit through Robert Kitonga Nguli sworn on 20th April, 2022 where he has reiterated the above grounds adding that the respondents are former and current members of Jesus for Life Foundation Ministry Kitui Assembly.

4. The deponent avers that the respondents are not officials of the church and that they have no authority to act on behalf of the Church.

5. He accuses them of breeding chaos and engaging in disruptive activities in the church including planning a coup and forcefully taking over the leadership of church with less regard to law and church constitution.

6. The Pastor has expressed fears that unless ordered by this court to open the church premises, they will not have access to hold service on Sunday and other weekly church activities.

7. In their submissions through their learned counsel, the applicants submit that Jesus for Life Ministries (hereinafter to be referred to as JFLM for ease of reference) Kitui was a branch of the main JFLM Ministries with its headquarters in Nairobi and with over 23 branches, Kitui being one of them. They have denied the respondents’ claim that they were just providing cover for Kitui Church. They contend that the respondents have been causing chaos and disrupting normal operations and worship service and have asked this court to intervene by restraining them arguing that they are orderly people who cherish law and order rather than chaos.

8. They accuse the respondents for cessation with the main JFLM Church and have insisted that the named respondents are not members of the board of church and have no mandate of the church to carry out the activities being carried out at the church currently.

9. The respondents on the other hand have opposed this application through the grounds of objection dated 22nd April 2022 and a replying affidavit sworn on 25th April 2022 by Nicholas Muoki Mailu, the 1st Respondent.

10. The respondents aver that a team of four members birthed the idea of establishing a local church in Kitui and that the four decided to approach JFLM with the idea of operating a church in Kitui using their cover and name.

11. They further contend that JFLM agreed to their proposal but they insist that the operationalization of church under JFLM cover did not mean that they ceded their sovereignty as the pioneers of the local branch.

12. According to the respondents, problems arose over leadership after a while which saw some two of the members defecting from the church. The respondents claim that the problems escalated when they discovered that the 1st and 2nd applicants were related and were making decisions affecting the church unilaterally without involving the Executive Committee.

13. They further contend that their relationship with JFLM was based on a gentleman’s agreement that they were to operate under the umbrella of JFLM but that the same did not mean they were a branch of JFLM. They fault the plaintiffs for making moves that interfered with finances of the church without involvement of the executive committee and have cited opening of a bank account at Kenya Commercial Bank as an example of acting without involving what they term as church officer bearers.

14. In their oral submission made through learned Counsel Mr. Kilonzi, the respondents contend that the prayers sought in this application are not available because they have been overtaken by events and faults the applicants for throwing fireballs all over the place.

15. The respondents submit that an injunctive relief primarily is preventive in character to forestall what has not occurred. They contend that the applicants are not seeking restoration of leadership in the church and that if the applicants want restorative justice, they should have opted for Judicial Review Forum rather than seek unobtainable injuctive reliefs as sought herein.

16. The respondents concede that chaos were witnessed in the church recently as claimed by the applicants but they insist that the same were quickly managed through the intervention of DCI Kitui. They contend that there has been no further chaos witnessed in the church.

17. The respondents have gone to great length through replying affidavit and exhibits to explain how their church started and the genesis of the current problems bedeviling the church.

18. The respondents content that because they did not want to cede their autonomy they started another church named El-Bethel Church arguing that a church is composed of members who should be allowed to chart their destiny. They submit that they joined JFLM voluntarily and subscribed to its Rules and Regulation but they aver that a time came to sever the relationship because the constitution of the church had a gap since there was no provision for disengagement.

19. They fault the applicants for seeking to install leadership in the church without involvement of members and have submitted that they had no right to do so or go to an extent of changing bank signatories.

20. This court has considered this application and the response made. There is no doubt that this matter has generated quite some heat which could explain why parties from both sides and their counsels went to great lengths in explaining their respective positions. I must say from the onset that most of the issues raised by the parties herein are issues to be interrogated and canvassed during the main trial. The matter before me is interlocutory in nature because the orders sought are interlocutory and not permanent.

21. The applicants are seeking injunctive reliefs against the respondents and the principles governing injunctions are now well settled. I expected counsel to address this court on the principles well set out in Giella versus Cassman Brown [1973] E.A 358 but sadly none did so. In that celebrated case 3 principles were well laid out by court namely;i.An applicant has to demonstrate that he has a prima facie case with probability of success.ii.An applicant has to show that he will suffer irreparable loss or damage if the following injunction is not granted and show that an award in damages may not be feasible.iii.If the court is in doubt on the above two requirements, then it will decide the application on the basis of the balance of convenience.

22. Before I embark on the above principles I will consider preliminary issues raised by the respondents which basically relates to the propriety of this matter being brought before this court or put another way whether this court is seized with the jurisdiction to entertain it.

23. There is no dispute that JFLM is registered society under Societies Act Cap 108 Laws of Kenya. The applicants have exhibited a certificate of Registration No. 39319 issued by Registrar of Societies on 21st January, 2013. The JFLM is a religious body involved in religious activities like worship, spiritual nourishment and other similar activities.

24. This court has had a cursory look at the constitution of the church (JFLM) and finds that there is no mechanism provided for internal disputes resolution mechanism. So while it is true that courts of law would normally exercise some restrain in intervening in the first instance when disputes arise that only applies in a scenario where dispute resolution mechanism exist. In situation such as obtaining in the instant case, when a dispute is brought to the attention of the court then the jurisdiction of this court can be invoked under Article 165(3) (a) of the Constitution of Kenya 2010. To that extent, this court finds that the matter before court is properly before it and this court is seized with the requisite jurisdiction to entertain it.

25. Having dealt with the question of jurisdiction, I will briefly address the other preliminary issue raised by the respondents which is the challenge made on the plaintiff’s option to file a suit rather than Judicial Review.

26. The position of this court regarding Judicial review proceedings is that Judicial Review (J.R) proceedings are unique or some genesis because they are neither civil or criminal but public law remedies rather than private law. Judicial Review remedies in their nature are prerogative and involves special jurisdiction of the High Court and is designed to check or challenge the government or statutory bodies in their discharge of their mandate or exercise of their administrative or statutory powers. Judicial Review remedies are there to test the legality or boundary of the powers or procedural deficiencies. Judicial Review is not designed to interrogate merits or facts in a dispute but the procedural aspects undertaken by a public or statutory body.On that basis, therefore this court finds the respondents’ contention that the applicants should have sought Judicial Review remedies a bit misplaced and misleading.

27. The Court in Republic v Zacharia Kahuthu & another (Sued as Trustees and on Behalf of and as Officials of the Kenya Evangelical Lutheran Church); Johaness Kutuk Ole Meliyio & 2 others (Interested Parties) Ex parte Benjamin Kamala & another [2020] eKLR held as follows;‘‘It is elementary law that Judicial Review is ill equipped to deal with disputed matters of fact where it would involve fact finding on an issue which requires proof to a standard higher than the ordinary balance of probabilities in civil litigation. For the above facts to be proved or disapproved, there is need for direct evidence to be adduced and tested through cross-examination of witnesses before the court can make conclusions. This position has been up held by our superior courts on numerous occasions. In Republic vs National Transport & Safety Authority & 10 others Ex parte James Maina Mugo[10] it was held: -“. ..… where the resolution of the dispute before the Court requires the Court to make a determination on disputed issues of fact that is not a suitable case for judicial review. The rationale for this is that judicial review jurisdiction is a special jurisdiction which is neither civil nor criminal. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect determine the merits of the dispute the Court would not have jurisdiction in a judicial review proceeding to determine such a dispute and would leave the parties to ventilate the merits of the dispute in the ordinary civil suits.”

28. The situation obtaining in this matter shows that the dispute is between a church and its members. This court has to delve into matters of fact which is outside the purview of Judicial Review jurisdiction. The reliefs sought in this application and the suit are injunctive and this court is well placed to entertain it in the style and the manner it has been presented to this court.

29. Having disposed-off the preliminary issues I will go back to the merits of this application and I have laid out above the guiding principles in the grant of the reliefs sought.

(i) Whether the Plaintiffs have a prima facie case with probability of success. 30As I have noted above the plaintiffs have established that they are a registered society in Kenya. Their operations are therefore legal in so far as they do not go beyond the religious activities listed in their constitution. There is no dispute that JFLM is a religious organization with branches and headquarters in Nairobi. That alluded fact has not been disputed. It is also not disputed that the Plaintiff operate a branch or an Assembly as they call it in Kitui where the respondents were initially members. The respondents have conceded that they subscribe to the said church. The disputes in my view on the face of it appears to be money related and it apparent that the parties seem to have forgotten and/or disregarded the fact that while at times money is seen as solution to many problems, at the times as the Holy Book states in (1st Timothy 6:10), it is the source or root cause of evil squabbles in the society.

31. The issues of dispute over change of leadership or bank accounts are all money related and though at this stage it is not safe to determine who is on the wrong it is mandatory that this court determines whether on a prima facie basis, the applicants have established a case with high chances of success.

32. Without delving much into the disputed facts at this stage, they are two facts that have swayed in favour of the Plaintiff in respect to establishing a prima facie case.

33. (a)For one, they have demonstrated that the respondents have executed a coup by establishing another denomination known as El-Bethel Church within JFLM premisesThe respondents have conceded that they have defected but the question that may require more interrogation at the trial is whether they can lawfully plant another different church in place of an existing church with a different name and whether the two churches are related.(ii)Secondly, this court visited the church grounds and it was clear that the signage of JFLM was uprooted from the main road and in its place a signage of El-Bethel Church is placed.It was also evident from the remains of the uprooted signage which was placed at the back yard of the church that someone went to great length to deface it and destroy it. It is true that at the time this application was made, the same activities had not taken place. As a matter of fact, the one of the grounds urged by the respondents was the fact that the prayers sought in this application have since been overtaken by events. The question posed is whether a party in litigation can be allowed to deliberately create a situation where the prayers will be rendered spent and turn around and seek to benefit from such wrong doing. My short answer to that is in the negative. A court of law should address its mind to the wider interest of justice rather than allow itself to be weighed down by technicalities. The Provisions of Article 159 (d) of the Constitution is clear on that. Justice should be administered without undue regard to technicalities.

34. The applicants have persuaded this court that they have a right to operate on the suit property. That fact is undisputed in this case. The respondents have admitted that they got a license to open and operate a church under the banner of JFLM. They contend that they entered into what they refer to as a gentleman’s agreement with JFLM to operate under their name and authority. However, what is being contested is the allegation that they retained their autonomy and was not ready to cede it away. The evidence so far laid before me do not support such proposition. The only finding at this interlocutory stage that this court has made is that the Plaintiff/Applicants have established a prima facie case.

(ii) Whether the applicants have proved that payment of damages cannot compensate them 35. On whether the applicants would suffer irreparably and may not be adequately be compensated by way of award of damages, the issue at hand involves the administration/operations of a church as well as parties’ freedom of worship and spiritual nourishment. In my considered view, quantifying the loss in such circumstances is a tall order. This court visited the church grounds of the disputed church and found defaced signage of JFLM and a new signage of El-Bethel Victory Church. As I have stated above it is difficult to know at this stage if the two church denominations share the same beliefs and faith. Those are issues to be canvassed at the trial. What is apparent is that applicants are a bona fide registered society with an unchallenged Sale Agreement entered into in respect to the suit property where the church is situate. The respondents claim on the other hand is reported to be based on a gentleman’s agreement. Therefore, on a prima facie basis the applicants have established a good case against them.

36. While it is true that the right to worship is guaranteed under Article 32 of the Constitution, that right must be exercised in a lawful orderly version. Article 32 provides: - ‘‘i.Every person has the right to freedom of conscience, religion, thought, belief and opinion.ii.Every person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, practice, teaching or observance, including observance of a day of worship.iii.A person may not be denied access to any institution, employment or facility, or the enjoyment of any right, because of the person’s belief or religion.iv.A person shall not be compelled to act, or engage in any act, that is contrary to the person’s belief or religion.”

37. The rights of the Plaintiffs as well as the rights of the respondents to worship are rights that need protection but under Article 24 of the Constitution of Kenya the right is limited where it is shown that limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.At this stage this court is persuaded that the applicants have satisfied the first two requirements in Giella versus Cassman Brown but the balance of convenience in view of the circumstances blaming tilts in favour of the applicants. The respondents should continue operating under the banner and blessings of JFLM until the suit herein is heard and determined.In short this court finds merit in the Notice of Motion dated 20. 04. 2022. The same is allowed in the following terms: -i.That pending the hearing and determination of the suit herein, an injunction is hereby issued stopping/prohibiting the defendants/respondents by themselves, agents or anyone acting under them from disrupting or interfering with the worship and church activities of Jesus for Life Ministry, Kitui Branch.ii.That the respondents do hereby remove padlocks placed on the doors of the church and Pastor’s office and besides that remove the signage of El-Bethel Church pending the determination of this suit and in its place restore the signage of Jesus for Life Foundation Ministry (JFLM) in the position it was before it was uprooted.iii.The Officer Commanding Division (OCPD) Kitui is hereby directed to ensure compliance of this order.iv.Costs of this application shall be in main suit.

DATED, SIGNED AND DELIVERED AT KITUI THIS 19THDAY OF MAY, 2022. HON. JUSTICE R.K. LIMOJUDGE