[2023] KEHC 23171 (KLR)

Njera & another (Suing As The Arch Bishop And Trustee Of St Meshack's Fellowship Church (HERA)) v Achola & another (Civil Suit 12 of 2019) [2023] KEHC 23171 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23171 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Suit 12 of 2019

RE Aburili, J

October 3, 2023

Between

Hesborn Njera

1st Plaintiff

Jonahan Onyango Ochare

2nd Plaintiff

Suing As The Arch Bishop And Trustee Of St Meshack's Fellowship Church (HERA)

and

Tobias Achola

1st Defendant

Julius Odundo

2nd Defendant

Judgment

1. This matter has been here for a while. It involves the clergy. Attempts at Court Annexed Mediation did not bear fruit. It was finally head by F. A. Ochieng J. I only took over the matter for Judgment writing.

2. The plaintiffs are the Archbishop Dr. Hesbon Njera and John Onyango Ochare suing as Trustees of St. Meshack’s Fellowship Church (HERA). The Defendants are Tobias Ochola and Julius Odundo.

3. The plaintiffs’ claim against the defendants is as per the Plaint dated May 28, 2019seeking for a permanent injunction restraining the defendants whether by themselves, their agent, representative, servant and or employee from interfering with the operation of St. Meshack’s Fellowship Church – HERA by collecting offerings, tithes or in any manner handling church funds and property, carrying out any church duties contrary to the church constitution.

4. The plaintiff also prays for an order to issue to the defendants jointly to return all church items, regalia, property that is in their custody and belong to St. Meshack’s Fellowship Church (HERA). They further pray for costs of the suit and interest on costs at court rates.

5. In the body of the plaint aforestated, the facts disclosed are that the 1st defendant was promoted and appointed as Vicar General by a letter dated January 2, 2017 in line with the church constitution and that following the special Archdiocesan Synod held on March 30, 2018, several appointments and transfers were authorized whereupon the plaintiff was transferred from Eastern Diocese to Kisumu Town Diocese but that the plaintiff (sic) appealed and the same was considered and a decision was made declining his appeal.

6. That despite being granted a hearing, the 1st Defendant failed to take up his new position where he was transferred and instead started engaging in transgressions that were against the church cannon Rules and the Constitution where it was decided that he be transferred to the Archdiocesan Tribunal as per the Church constitution and the charges were drawn and served on the 1st plaintiff (sic).(must have meant 1st defendant).

7. That the 1st defendant responded vide letter dated June 24, 2018 denying the allegations but that despite being on suspension awaiting the decision of the Tribunal, the 1st defendant continued with further transgression forcing the church to write another letter dated July 15, 2018 and that the 1st defendant presided over a church service contrary to the directive given by the church.

8. That the 1st defendant continued transgressing forcing the church to issue a further Notice of transgression as per the cannon Rules of the church.

9. That on August 31, 2018, the Tribunal made its decision wherein it found the 1st defendant guilty of all the charges and made a decision to suspend the 1st defendant for 3 years, served him with a warning letter and also demanded return of all church items and regalia and to also inform the government of that decision.

10. The plaintiffs further pleaded that they issued the 2nd defendant with notice of his retirement dated January 22, 2012 as per the Church Constitution upon him attaining the retirement age after noticing that he was delaying in remitting the church offerings.

11. According to the plaintiffs, the 2nd defendant retired by end of December, 2018 and was therefore not allowed by the Church Constitution to carry out any further church activity.

12. That contrary to the Church Constitution, the defendants had continued to carry on their activities in the church Dioceses, collecting offerings and tithes, consecrating clergy and presiding over church services when they are not authorized to do so.

13. Further, that despite several reminders to desist, the defendants and their agents had continued with their transgressions against the Church Constitution which actions had caused confusion, anxiety and division amongst church members.

14. According to the plaintiffs, the defendants having been granted all the machinery and opportunities under the Church Constitution and its disciplinary and appeal organs which they utilized to the fullest, went to court and filed cases which were dismissed and were withdrawn while others are pending costs but that the church’s decision to retire and suspend them stands and they cannot purport to carry out any activity of the church without express permission of the Archbishop as the Supreme leader.

15. The church therefore fears that church members may resort to violence and anarchy and even injuries which shall result in damaging the image of the church hence the prayer to restrain the defendants from carrying out their illegal activities which interfere with the normal functions of the church as the church may lose funds through diversion, division and injuries to church members.

16. In the defence filed by the defendants denying the claim by the plaintiffs against the defendants, the 1st defendant stated that he applied for a study leave vide letter dated December 24, 2016 as he intended to pursue a Bachelors Degree Program at Africa International University and that the request was accepted by the Archbishop vide letter dated January 2, 2017 and he even vide letter dated the same day, appointed the 1st defendant as Vicar General but that to the 1st defendant’s consternation, the plaintiff wrote a letter dated December 12, 2017 deploying the 1st defendant as Vicar General in the Eastern Diocese Headquarters in Nairobi assuring the 1st defendant that his studies were not going to be interrupted.

17. That the 1st defendant was even bestowed with more responsibilities at the Eastern Diocese.

18. That to his utter disbelief, vide letter dated March 10, 2018 the 1st plaintiff without consulting the 1st defendant transferred the latter to the Central Diocese, Archdiocese of Kisumu, following the creation of the Southern Diocese, which transfer the 1st defendant requested to be rescinded as he was still on study leave in Nairobi and so his appeal for reversal of the transfer only for the 1st defendant to receive a letter declining his appeal on account that he had transgressed by declining to follow directives hence, the Tribunal had suspended him for 3 years with immediate effect; he was to be served with a warning letter valid for 12 months and that he was to return all church regalia in his possession yet he was never accorded a hearing at the Tribunal or informed when the Tribunal was sitting hence the penalty in absentia was unfair.

19. The 2nd defendant on the other hand contended that on April 15, 2012 he was promoted from Vicar to office of Bishop in a consecration ceremony presided over by the 1st plaintiff and on December 29, 2017 he was transferred to Central Diocese, Archdiocese of Kisumu where he served for 2 years before he was unceremoniously informed by the church leadership that he was supposed to retire on account of a change of the Constitution limiting his retirement age of 70 years to 65 years contrary to the declaration by the 1st plaintiff that the 2nd defendant was to retire in 2029 as per Article 26(D) II.

20. Having set out the parties’ respective positions above, it is clear to me that in determining the merits of this case, the court will have to determine not only the issue of return of church regalia and or injunction to restrain the defendants from conducting or interfering with the operations of the church by collecting tithes and offerings but to also determine whether the suspension of the defendants clergy from conducting the church business since the Plaintiffs’ claim that the Defendants were suspended on account of transgressions was procedurally fair. In addition and in respect of the 2nd defendant, this court will gave to determine whether the demand for the 2nd defendant to retire at 65 years instead of 70 years was in accordance with the church constitution and terms and conditions of service of the 2nd defendant as clergy for the church clergy.

21. In my view, the determination of the above questions requires this court to investigate into the lawfulness of the plaintiffs’ decision to suspend the 1st defendant who was on study leave, the justification for the transfer as well as the lawfulness or otherwise of the suspension of the 1st defendant from exercising the functions and duties as an ordained clergy as well as the lawfulness of the demand that the 2nd defendant retires at 65 years old and not 70 years.

22. In my humble view, these questions and issues are not matters which are in the province of this court as they relate to Employment and Labour Relations as contemplated insection 12 (1) and (7) of the Employment and Labour Relations Court Act and article 162(2) (a) of the Constitution.

23. Section 12(2) of the Employment and Labour Relations Court Act provides for jurisdiction of the Court as follows:“12. Jurisdiction of the Court(1)The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including—(a)disputes relating to or arising out of employment between an employer and an employee;(b)disputes between an employer and a trade union;(c)disputes between an employers’ organisation and a trade union’s organisation;(d)disputes between trade unions;(e)disputes between employer organisations;(f)disputes between an employers’ organisation and a trade union;(g)disputes between a trade union and a member thereof;(h)disputes between an employer’s organisation or a federation and a member thereof;(i)disputes concerning the registration and election of trade union officials; and(j)disputes relating to the registration and enforcement of collective agreements” [emphasis added]

24. Section 12(3) provides that among the orders that a court can make in such disputes are:“(i)interim preservation orders including injunctions in cases of urgency;(ii)a prohibitory order;(iii)an order for specific performance;(iv)a declaratory order;(v)an award of compensation in any circumstances contemplated under this Act or any written law;(vi)an award of damages in any circumstances contemplated under this Act or any written law;(vii)an order for reinstatement of any employee within three years of dismissal, subject to such conditions as the court thinks fit to impose under circumstances contemplated under any written law; or(viii)any other appropriate relief as the court may deem fit to grant

25. The orders being sought against the defendants are injunctions to restrain them from conducting themselves as clergy, having been suspended from performing those duties of clergy or having been retired in the case of the 2nd defendant.

26. Article 165(5) (b) of the Constitution expressly bars the High Court from hearing and determining disputes exclusively reserved for the specialized courts contemplated in article 162(2) of the Constitution and the Supreme Court.

27. Jurisdiction is everything without which this court would be acting in vain and causing an injustice to parties. This is a matter which, had I heard it in the 1st instance, I would have redirected the parties to the correct court at the inception.

28. It is unfortunate that such an old matter has to remain in our courts. However, without jurisdiction, this court can do no more than down its tools.

29. In the premises, I hereby find that this court had no jurisdiction to hear and determine the dispute herein which leans more on Employment and Labour Relations between the church and its clergy. From this end, I decline to determine its merits and make no orders as to costs.

30. For that reason, I hereby direct that this file is hereby transferred and placed before the Employment and Labour Relation Court, Kisumu for disposal.

31. I close the file from this end.

32. I So order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 3RD DAY OF OCTOBER, 2023R. E. ABURILIJUDGE