[2024] KEELC 6203 (KLR)

Njoroge & 2 others (Suing as the registered trustees New testament Church of God Kenya) v Njuguna t/a Charismata Ministries Network & 2 others (Civil Suit 129 of 2019) [2024] KEELC 6203 (KLR) (23 September 2024) (Judgment)

Neutral citation: [2024] KEELC 6203 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Civil Suit 129 of 2019

FM Njoroge, J

September 23, 2024

Between

Moses PN Njoroge

1st Plaintiff

Jim Wambole

2nd Plaintiff

David Hinga Muirururi

3rd Plaintiff

Suing as the registered trustees New testament Church of God Kenya

and

Reverend Dr Musa Njuguna t/a Charismata Ministries Network

1st Defendant

Musa Njuguna Ministries INC

2nd Defendant

Rev Musa Njuguna, The Registered Trustee Charismata Ministries Network

3rd Defendant

Judgment

Introduction 1. This suit was filed in 2004 in the High Court. It was later transferred to the ELC. The pleading relied on by the plaintiffs is the amended plaint dated 18/7/2011. In it the following extensive raft of orders are sought:i.That the defendants their servants and/or agents be restrained from entering attending changing the sign posts, imposing their pastors, trespassing, conducting or otherwise taking over the operations of the plaintiff’s churches at Molo Worship Centre, Eldama Ravine New Testament Church and Nakuru Town New Testament Church;ii.A declaration that all the changes effected on title numbers Mau Summit/Molo Block 1/181 and Mau Summit/Molo Block /182 removing all entries relating to the transfer of the plots from the 1st defendant to the plaintiff or restoring the 1st defendant as the registered owner are null and void;iii.That the titles held by the 1st defendant and or all the defendants be cancelled and the plaintiff titles to land reference numbers Mau Summit/Molo Block 1/181 and Mau Summit/Molo Block /182 be restored;iv.That the Deputy Registrar be authorized to sign the transfer document in respect to Land Reference Number Mau Summit/Molo Block 1/181 and Mau Summit/Molo Block /182 in favour of the plaintiff;v.That a declaration that the 1st defendant holds title number Nakuru Municipality Block 4/122 in trust for the plaintiff and an order that he transfers the same to the plaintiff absolutely;vi.That in the alternative to prayer (iv) above the contribution of the plaintiff be assessed and the 1st defendant be ordered to compensate the plaintiff to the extent of its contribution as particularized under paragraph 8A;vii.That the defendant hand over to the plaintiff all its assets and documents including tents a public address system, musical instruments, office furniture and stationery, vehicles, original title deeds, to Mau Summit/Molo Block 1/181 and Mau Summit/Molo Block /182, money keys and any other property in his possession belonging to the plaintiff;viii.That the defendant be prohibited from representing himself and or Charismata Revival Network as part of New Testament Church of God – Kenya;ix.General damages for trespass;x.Costs of this suit;xi.Interest at court rates on (x) above;xii.Any other relief that this court may deem fit to grant.

Plaintiff’s case 2. The plaintiff avers in the amended plaint dated 18/7/2011 that the 1st defendant runs Christian Ministry known as Charismata Ministries Network; that the 2nd defendant is a corporation incorporated by the 1st defendant in Texas, United States, under the Texas Non Profit Act and it operates in the Republic of Kenya. The 3rd defendant is a Christian Society duly registered under the Societies Act of the Laws of Kenya. The plaintiff was at all material times a part of the Church of God whose headquarters are in Cleveland Tennessee in the United States of America and it is engaged in evangelism and discipleship in Kenya.

3. The 1st defendant was a church minister engaged by the plaintiff in 1990 and ordained in 1994 at the plaintiff’s headquarters in Cleveland and was subject to Church of God International minutes formulated by its General Assembly. He was appointed Regional Overseer of the plaintiff’s churches in the Western Kenya region; He was charged with inter alia, planting of new churches, fundraising for church construction, discipleship and evangelism and was not supposed to engage himself in other unapproved ministries according to the plaintiff’s code of conduct.

4. The churches the 1st defendant was appointed in respect of included four churches, to wit Molo Worship Centre, Eldama Ravine New Testament Church, Njoro New Testament Church and Nakuru Town New Testament Church. These are the churches subject of this suit. The plaintiff avers they were constructed with funds from their respective congregations, donations from friends and funds from the plaintiff’s headquarters and sister churches. The plaintiff avers that it made monetary contributions towards the purchase of the land on which the Nakuru church stands. However, contrary to the code of conduct, the 1st defendant incorporated the 2nd defendant named the evangelistic team of the church “Charismata Revival International” and used it interchangeably with “Charismata Revival Network” and introduced names such as “Charismata Revival International Ministries,” “Charismata Gospel Team,” “Charismata Revival Centre”, And “Charismata Ministries Network” on the plaintiff’s letterhead. He began to create some autonomy from the plaintiff church by failing to account conducting his own programmes unilaterally, and bringing in external guests for lengthy programmes without the plaintiff’s knowledge. In 2004 his operations were recognized to be based on deception and misrepresentation and breach of policies and aimed at taking over the plaintiff’s Rift Valley region churches and to impose a change in leadership without plaintiff’s approval. He was thus excommunicated vide a letter dated 14/7/2004. Nevertheless, he continued to present himself as a member and minister in the plaintiff’s organization, thus using his former position and influence to inter alia take over the running of the plaintiff’s churches, obtain monies from donors under pretext of working with the plaintiff. He also had the District Land Registrar expunge the entries relating to the plaintiff’s interest in land and who, without any legal capacity under the Registered Land Act and while a court order subsisted barring such action, cancelled the plaintiff’s interest in Mau Summit/Molo Block 1/181 and Mau Summit/Molo Block /182 and transferred the said plots from the plaintiff to the 1st defendant. It is further stated that the defendants have caused to be removed from the plaintiff’s premises the plaintiff’s properties including musical instruments, vehicles office furniture stationery household goods and assorted electronics thus causing great distress to the congregations, hence the suit.

Defendant’s Case 5. After filing appearance on 7/9/2004 the 1st defendant filed a defence dated 14/9/2004 in which he stated as follows: that he denies the descriptive parts of the plaint (paragraphs 1,2 and 3, which will be significant herein after); that Charismata Ministries is a ministry within the framework of the plaintiff church, having been incorporated therein at the time of the 1st defendant’s appointment. At the time of his appointment as a minister in the plaintiff church and with the knowledge of the General Assembly. The Charismata ministries began when worship was being conducted under a tree and the congregation could not raise any money to construct a church; the 1st defendant raised money by growing wheat for three seasons and purchased a parcel of land next to his home in Molo. The two titles on which the Molo church is erected were therefore purchased by the 1st defendant from his own resources. The 1st defendant later gifted the said plots to the plaintiff after the construction of the church premises. However, the contribution by the congregation was quite minimal. The 1st defendant remained loyal to the headquarters church, and he christened the Molo church as “New Testament Church of God Charismata Ministries” to show that the Ministry was under the church and did not intend to usurp the church activities. The 1st defendant also notified the General Assembly of his incorporation of the 2nd defendant as an organization separate from the church. The defendants stated that the dispute resolution procedures of the plaintiff church were not applied and exhausted with regard to the present dispute prior to the lodging of the present suit, and refuted the validity of the purported letter of his excommunication but at the same time admitted the jurisdiction of this court in another paragraph of the same defence. The 2nd defendant averred that the plaint does not disclose any cause of action against it. The 1st defendant also averred that Nakuru Municipality Block 4/122 is private property whose owner’s rights can only be defeated in the manner provided for by law.

Evidence Plaintiff’s evidence 6. PW1 – Simon Ngure Ben sworn, testified on 9/5/2019, 6/11/2019 and 12/10/2022 and adopted his written witness statement in this case on 30th April 2012 as part of his evidence-in-chief. He stated that he is the plaintiff’s Regional Overseer Western Region, having held that position since 1998. Before then he was Pastor in Molo Worship Centre. Musa Njuguna, the 1st defendant herein was his pastor for a number of years, having worked under him as an Assistant Pastor in New Testament Church of God from 1992 to 1998. The Molo Church started initially meeting at Molo Social Hall. They later sought land and settled on Mau Summit Block 1/182. The Molo church was constructed on those two plots. The construction started in 1993. To his knowledge, the title deeds, which he had the occasion of seeing, were in the custody of Musa Njuguna, the 1st defendant and were issued in the name of New Testament Church of God. He produced copies of the title deeds as exhibits.

7. PW1 further stated that the 1st defendant was in charge of the process of acquisition of the properties. Around 24th May 1994 the 1st defendant advised the national overseer that he had finalized registering the plots in the name of the church. He stated that he had donated the two plots to the church. He also stated that the cost of construction thereon was financed by the members of the church. He also wrote requesting for more support.

8. PW1 was Rev. Musa’s assistant. Rev. Musa was mandated conduct developments and was in charge of buying of plots. Rev. Musa sought assistance from the national and international offices of the church. The offices insisted that they could only assist if the plots were registered in the name of the church. Rev. Musa agreed to register them in the name of the church and there was even an agreement. Rev. Musa wrote a letter dated 13th April 1994 (PExb.3) to Rev. Fred A. Brannen setting out the expected costs. PW1 produced another letter dated 7th June 1994 (PExh.4) from Rev. Musa to Ref. Fred A. Brannen. It was a follow up letter. He reported that registration had been finalised. He enclosed copies of the title deeds. At paragraph A he stated that the land was 1 acre and that he had donated the land to the church. Rev. Musa filed a Replying Affidavit (PExb.5A) in this case on 8th September 2004 at paragraph 13 of which he stated that he had transferred the land to the plaintiff as a gift. He also swore a Further Affidavit (PExh.5B) on 22nd September 2004 and filed it in this case on the same date. Again, at paragraph 10 he stated that he gifted the land to the plaintiff. A ruling (PExb.6) was delivered in this matter by Musinga J. on 15th October 2004 at page 10 of the ruling, the court found that it is not disputed that the land on which the Molo church stands was initially owned by the 1st defendant who willingly transferred it to the plaintiff as a gift. The original titles of the properties were retained by Rev. Musa. He gave the Church’s national office only copies of the titles. He confirmed as much in PExh.4. Construction of the Molo church was financed by members who did fundraising. PExh.7 comprised of 6 slips or booklets which members used. The plaintiff’s national office as well as the international office supported the project. He produced a letter dated 29th March 1996 (PExh.8) from Rev. Musa to Rev. Roland Vaughan. It shows that the project was given project number 7200352 to enable donors in America to be exempted from tax when making donations. Rev. Musa states in the letter that the National Office received a cheque for USD 10,000/= dated 10th November 1995. In another letter dated 2nd June 1995 (PExh.9) from Rev. Musa to Rev. Fred Brannen Rev. Musa was asking to be allowed to maintain a USD account in Nairobi since he had been receiving donations from other donors. In another letter dated 2nd June 1995 (PExh.10) from Rev. Musa wrote to Rev. Fred Brannen. At paragraphs 13 and 14 of PExh.5A Rev. Musa confirms receiving assistance from donors. Being Rev. Musa’s assistant, PW1 was aware of registration of the land in the name of the church and he also saw the titles in the name of the church. The church in Nakuru was established in April 1998. Rev. Musa moved to the Nakuru church and PW1 was left in charge of the Molo church. Rev Musa had no control of the original church save that he was signatory of the account. The plot where the Nakuru church is located was acquired by Rev. Musa while he was still a minister with the plaintiff church. In a letter dated 24th November 1997 (PExh.11) from Rev. Musa to Friends and parties, at paragraph 3 he stated that National Bank had agreed to sell to the church a piece of land. In another letter dated 8th December 1997 (PExh.12. ) from Rev. Musa to Rev. Fred Brannen. At paragraph 3 Rev. Musa stated that the Nakuru Town church would be part of New Testament Church but that it would be called Charismata Revival. Rev. Musa was still an ordained minister of the plaintiff church at that time. In a letter dated 7th January 1998 (PExh.13) from Fred Brannen to Standard Chartered Bank Nakuru Rev. Musa was authorised to open a new account with the bank.

9. The church learnt that the Molo property was registered in the names of Musa Njuguna when they witnessed jubilation in his faction and so it conducted a search and confirmed the plots titles had been transferred while a court order was still in existence. The New Testament Church is still in occupation of the land and it still pays the land rates and rents. The titles changed through dubious means. The Land Registrar had been very biased and wrong in taking up a matter that was pending in court and by doing so caused chaos on the ground. PW1 prayed that the Land Registry be ordered to restore the titles back to the New Testament Church of God.

10. Upon cross-examination by Githui PW1 stated as follows: that he is not a registered trustee of the New Testament Church of God. New Testament Church of God is an incorporated religious organisation and it has a certificate of incorporation It is a registered Society. Moses P. N. Njoroge was the National Administrative Bishop under the plaintiff’s Constitution. He was a trustee at the material time; the certificate of incorporation bears no names of trustees. The National overseer’s position is provided for in the Constitution. There is no provision for Administrative Bishop. PW1 further stated that trustees are appointed by the National Overseer and they are required to be registered. He did not have any document showing the appointment of Trustees. He did not have anything to show Moses, Jim and David Hinga Muiruri (the persons named as plaintiffs on behalf of the church herein) are still church members. He knew Apostle Musa as Apostle, General Overseer of Apostolic Faith Church (AFC) in the 1970s. That church was in no way affiliated to the New Testament Church which they later joined in June 1991. The Apostolic Faith Church is a different Society from the New Testament Church of God and they never merged to form one church. He and Apostle Musa left A.F.C due to fights that occurred there. There is still an Apostolic Faith Church in Molo to date. After they left AFC they hired space in Molo. Then Rev. Musa conceived the idea of buying land in Molo. He was the Pastor in charge. He mobilised members and his friends for the purpose. The land was bought in 1993. The persons whose help they sought to purchase the land said they could not help the church unless the land was registered in the name of the church. Rev. Njuguna himself then bought the land. The Trustees role is to acquire properties. Every District Overseer is charged with the task of getting land. Even Regional Overseers can buy land and plant a church anywhere. There is no document showing an ordained Minister can acquire land. He had the Green Card and evidence of donation by Rev. Musa and the letter donating the land Plot No. 182 (Mutirithia) and plot No. 181 (Mutirithia) are the subject plots in this dispute. He agreed that the letter of 7/6/1994 at paragraph 2 refers to the 2 plots whose numbers are unspecified, saying their transfer is finalised. Money came from the New Testament Church of God for construction of the church. There was correspondence to show that Rev. Musa communicated in a letter to one Roland Vaugan in Cleveland. Though the Church of God in Cleveland is not the plaintiff in this case, it is a registered Church in the U.S. and it is the mother church to New Testament Church of God.

11. Upon re-examination by Ms. Wachira PW1 stated that Rev. Musa was Regional Overseer and the duties of acquisition of land fell on him. He said that Rev Musa had said he had gifted the land to the church. He remained with the original titles. There is an order indicating that Rev. Musa has been excommunicated from the New Testament Church.

12. Upon cross-examination by court PW1 stated that Rev Musa was excommunicated in 2004 and that he never appealed the decision and that his residential house is on a different plot under a separate title.

13. PW2 Pastor Pascal Saya Ndula sworn adopted his witness statement dated 6/9/2011 and further orally stated that he was Associate Pastor New Testament Church under PW1 at the material time. He is still a minister in the Plaintiff Church, having joined the church in 1992 where he was received by Rev. Musa Njuguna. In 1996 he began ministering in that church. In 1999 Rev Musa helped him obtain some credentials, to wit, the Exhorter Certificate, and he became an evangelist in 2001. He became a licensed minister in 2002. Rev. Musa mobilised him and others to raise funds every Sunday to pay fundis daily as they worked. In 1995 Rev. Musa lobbied outside the country, got money and came and the church was completed. Rev. Musa showed PW2 and others title deeds to the land parcels and also submitted copies of the transactions he had done to the office of the National Overseer, Nairobi. He also wrote to the Acting National Overseer. From 1992 Rev. Musa was in charge. In 1997 he began evangelising in Nakuru. In the same year, he left Rev. Ngure in charge at Molo with PW2 under him. Rev. Musa worked in Nakuru till 1998. As a minister he could plant churches as long as he informed the Head Office. In 2004 Pastor John Ngugi went to Eldama Ravine. The church at Molo paid his salary. Members then questioned use of money from them to pay him. On 18/6/2004 a meeting was held to share with the church details on his sponsorship. Rev. Musa came to the Molo church, invited by Rev. Ngure. He said he intended to transfer Rev. Ngugi back to Molo and institute leadership changes. He recalled Rev. Ngugi. He said he had dissolved the church leadership. Rev. Ngure was away by then. Rev. Musa was to be the District Overseer and Rev. Ngure and PW2 were to assist him. The rest of the leadership were suspended. Elders ceased holding any portfolio. However, Rev. Musa had no power under the church Constitution to effect the changes. Rev. Musa painted the wall and deleted the address and added the name Charismata Revival Networks. The name “New Testament” remained above “Charismata.” PW2 and others communicated the events to the National office and informed the National Overseer who spoke to Rev. Musa and warned him of his excess of authority. He invited him to Nairobi to discuss but he refused to go there and he was therefore excommunicated. He resisted the excommunication. He became the main voice and PW1 and Rev. Ngure were stripped of their roles. A team visited the church to check the goings on. By then Rev Ngure had erased the name New Testament and retained only the name “Charismata”. PW2 and Rev. Ngure were his only problem. He claimed he was the founder of the ministry. However, he was an ordained minister who led an evangelical team in the church. Nevertheless, he refused to comply with the demands by the church leadership and the dispute began. He showed intention to eliminate the New Testament Church. PW2 went to the Land Registry Nakuru and confirmed the church land was still registered in the name of New Testament Church. He called Bishop M. P.N. Njoroge who advised him to lodge a caution on the title. The Advocates, Musyimi & Co., lodged the caution and it was registered. A court order restraining interference with the land was obtained. After court case was filed, Rev. Musa restrained us from entry into the church.

14. Rev. Ngure was at one point dragged out of the church. The Administrative Bishop (P.N. Njoroge) was visiting then, and he observed the events and reported to the police. Orders issued in the case later on returned PW1 and Rev Ngure to the church and their assailants were arraigned in court. They were invited to a meeting before the Registrar to explain how the land was registered in the church name. They gave the Land Registrar all their documents and told him that the matter was in court. They explained that the transaction was undertaken by Rev. Musa when he had authority as District and Regional Overseer and the transfers were done by him. They gave Land Registrar documents showing Rev. Musa was instrumental in transfer. Before 1994 Green Card showed Government of Kenya to New Testament Church. While before the Land Registrar he said Rev. Musa was on the ground. There was by then whiteout on the Land Records. The Land Registrar said the name Musa is appearing a lot and was on the surface of the white-out. He asked how the name changed to New Testament Church. PW2 and his colleagues said Rev. Musa had undertaken the changes. Rev. Musa was abroad by then. He called the Land Registrar, one Mr Githii and spoke to him and said he was the owner of that land. The Registrar made a ruling later. There was jubilation and the barrier separating Rev. Musa’s house from the church was destroyed and his faction noisily came to the church compound. PW2 called the national office. They then conducted a land search at Nakuru and found the land title had been changed to the name of Rev. Musa Njuguna. The official search showed that the title was transmitted straight from Government of Kenya to Rev. Musa. This happened even as the present suit was still pending in court. Rev. Musa was then restrained and the church continued occupying the land. Rev. Musa began worshipping in his house. PW2 stated that the title deeds issued in the name of Pastor Musa should be registered under the name New Testament Church of God.

15. PW2, cross-examined by Mr. Githui, stated as follows: Rev. Musa had Apostolic Faith Church which he had run for about 20 years before he joined the New Testament Church. He was aware it was an independent society separate from New Testament Church. Apostolic Faith Ministry is still alive to this date. It had its space running its affairs next to Molo Law Court. Due to hostile environment in the Apostolic Faith Church, PW2 joined New Testament Church in 1992 and Rev. Musa received him into the New Testament Church. New Testament Church has sued in this case. He did not have in court any minutes appointing trustees nor any Certificate of Registration of trustees. He denied that this dispute is a fight between him and PW1 on one hand and the defendant on the other and maintained that the defendant had purchased land from 2 people using church finances and donated it to the New Testament Church in 1994 as a gift. He saw a letter on the issue of a gift which just gave a general description of the Molo property but it never mentioned the two plots, that is plot No. 181 and No. 182. Rev. Musa was ordained into the New Testament Church in 1994 Funds for construction were raised by Rev. Musa between 1992 – 1995. Rev. Musa came and waved the title deed to the land and when PW2 and others looked at it from close quarters they saw the registration was in the name of the New Testament Church of God. The Land Registrar said the name appearing most in the document is that of Rev. Musa and he questioned how the process led to the registration of the New Testament Church rather than in Rev. Musa’s name. That consideration is prompted him to cancel the church titles. The plaintiff church also claims the property at Nakuru town on the basis that Rev Musa was minister with the plaintiff when he started the church there and he was receiving tithes and offerings when he bought it. There were offerings given by the congregation

16. Upon re-examination by Ms. Wachira PW2 stated that the Trustees serve for a while. They are renewable. There was a restraining order by the court against Rev. Musa. He had donated the property and had sworn an Affidavit stating that he donated it. The headquarters of New Testament Church in Kenya is in Karen, Nairobi, but Worldwide headquarters is in Cleveland Tennessee. Rev Musa was holding the originals of the titles. Construction of the church was by Pastor Musa Njuguna who was in charge of the church locally then.

17. PW3, David Gilbert Bwire sworn, testified in the case and stated as follows that he is the National Administrative Bishop New Testament Church having taken over from Bishop Moses P. N. Njoroge in 2014 when the position was called “National Overseer”. He is also a trustee. He took over all the duties of Moses P.N. Njoroge. He is mandated by the church Constitution in Kenya and the international church to appoint pastors, District and Regional Overseers and to see that they do their work of leadership in accordance with the Constitution of the church. A regional overseer supervises all the pastors in his region, raises local resources, ensures land purchase, ensures registration is done and submits title deeds to the National office. Rev. Musa entered the church in 1992 and as Regional Overseer he was to ensure the church was built. Musa Njuguna Ministries which Rev Musa began came about by reason of him executing his duties in Molo without consultation with the General Overseer. He also went and began a church at Nakuru. Rev. Ngure was appointed for the church at Nakuru. Allegations of misconduct on the part of Rev Musa came up. He was summoned by the church leadership but he never appeared. In 1994 he registered the titles in the name New Testament Church and submitted only copies of the titles, then sought finances to construct. PW3 does not know how he transferred the land to himself. He was to undergo an excommunication trial by a trial Board but he failed to attend and a letter excommunicating him was thus issued. All ministers were informed that he was no longer a minister with the plaintiff church. However, he did not stop interfering with the Molo church. He hired goons to drag out the serving pastors. Rev. S. Ngure is still in charge. The New Testament Church pays rates and rents for the suit land. Moses P.N. Njoroge had sought to have dialogue with Rev. Musa but in vain.

18. Upon cross-examination by Mr. Githui PW3 stated that he was appointed administrative Bishop on 1/9/2014. He admitted the plaintiff did not file the document showing trusteeship of the church. Trustees serve for a period of 4 years, renewable. He did not produce the current constitution and he had nothing to show that he is a trustee. Before 2014 he was a pastor in Busia. He was also pastor in Molo at one time but he was not in Molo when the donation was done and he was not privy to the process. He only obtained information from the office. He never knew Rev. Musa before 1992.

Defence evidence. 19. DW1, John Ngugi Kamau, sworn adopted his witness statement dated 6/8/2020 as part of his evidence–in-chief and further stated as that he is a Pastor, who has served in that capacity under Bishop Musa Njuguna for some time. In 1992 Rev Musa came to Molo and started preaching under the banner of AFEM – Apostolic Faith Evangelistic Ministry. He was preaching in many places. DW1 joined him. It was agreed that as he was preaching Apostolic Church should work as a church and AFEM as a Ministry. The two organizations later separated. After the separation, AFEM transformed into Charismata Revival Network, a Society. DW1 and others joined Charismata Revival Ministries while they were young. When Charismata began it worshipped behind Molo Post Office under a tree. One member sought and got a hall in Molo township in an Indian School. They were not so comfortable in those premises and so they sought another venue. However, while still preaching in the school hall Rev Musa Njuguna said he had land parcels he had purchased and said instead of renting a worship place, he could avail his parcels Mau Summit Block 2/1/181 (Mutirithia) and Mau Summit/Molo Block 1/182. He was to gift the Charismata Ministries the land. He had 50 acres in Molo where he farmed wheat. He said he would offer building tools and other items. He had a tractor. That was around 1993 – 1994. His congregation was small. He said he would bless the Church of God and he began raising the materials by and by. People were willing to participate in construction. At the suggestion of a member who was a salon owner printed fundraising cards organized a fund raising and raised a little money. Another member printed more cards and they did the same. A third member volunteered in the same fashion too. One member by the name Phillis donated a goat. The church was raised to the lintel level. Bishop Musa flew abroad to his friends and obtained assistance. He would come back to the church and declare the assistance he had gotten. He would also use the assistance to sustain the pastors in the Ministry as they were not in any formal employment. Charismata was a Ministry in Molo Worship Centre. He announced we had a fellowship we could collaborate with based in Cleveland. Neither the New Testament Church nor the Charismata was dissolved. The Church of God based in the U.S. was hosted by the Molo Worship Centre. The “New Testament Church of God” is its name in Kenya. The New Testament Church of God never had a presence in Molo. Bishop was told by the then Overseer, one David, that because he (David) was going to the U.S then Bishop Musa Njuguna should become the Overseer of the Church in Kenya. Bishop Musa declined and offered Bishop Moses P. N. Njoroge to be Overseer. It was also suggested that Bishop Musa Njuguna should be made a National Evangelist but they later somebody else was given that position. Bishop Musa’s house is located next to the church. He said he has given the property as a gift to the Church so that when he is old he could amble to the Church. The Charismata Ministry was then in the working relationship with the New Testament Church of God. DW1 has never seen any transfer of the suit land to the New Testament Church of God. The parties once went to the land Office. Mr Githii the Land Registrar told them they needed to write down how each party acquired the land. Upon taking the written explanation the Land Registrar told them that the land had been transferred to somebody else. A Kenya Gazette Notice was issued and the land reverted back to Bishop Musa Njuguna. It is not true that the money to purchase the plots came from the New Testament Church of God. The latter has trustees, and nothing coming from abroad comes through an individual. They also normally require one to buy land and surrender it to the National office. They also have a Constitution. Regarding Parcel No. Nakuru Municipality Block 4/122, DW1 testified that they rented a house in Flamingo estate in the period 1998 – 1999. Bishop Musa had sought a hall. The National Office of the plaintiff church refused to help lease the building saying that one has to get a title and surrender it and they built a structure. Bishop Musa found that KCB was selling a certain building for Kshs. 3,000,000/= and offered to pay Kshs. 1,000,000/= from his account to pay the balance later; those events occurred in DW1’s presence. Among the terms proposed were that the title would be surrendered after purchase, and Bishop Musa and his group disagreed with the national Overseer on that issue upon which the National Overseer walked out of the meeting. The plot remained Bishop Musa’s under Charismata Ministries. After that that Bishop Musa’s group left Molo for Nakuru. Initially DW1 was temporarily left at Molo with Pastor Ngure. Later he was brought to Nakuru and then sent back to Molo. One day a meeting called to transfer DW1 to Eldama Ravine was convened but it fizzled out without a resolution. Bishop Moses P. N. Njoroge came the next day and issued a statement to the effect that the church does not belong to Charismata. He changed the name of the church. DW1 asked him to await Bishop Musa but he refused. Then chaos arose and the present dispute began. According to DW1, the gift of the lands was made to the working relationship that existed between New Testament church and Charismata and the claims in the present suit by New Testament Church lack any basis.

20. Under cross-examination by Mr Njenga DW 1 stated that he is now a Pastor under Kingdom Seekers Fellowship. He is not aware whether or not AFEM is registered. When Bishop came to Molo working under AFEM and Apostolic Faith. He could not tell whether or not Bishop Musa was by then appointed as a Minister of New Testament Church but by then he was working under him. When the vendors came to sell Bishop the land, DW1 was present. However, he is not aware whether or not an agreement was entered into between Charismata and New Testament Church.

21. DW1 upon re-examination by Mr. Githui stated that he was already a pastor by the time the working relationship between Charismata and New Testament Church was created and also that Rev Musa had other activities going on by then. The gifting of the land was pegged to the working arrangement. At that point the defence case was marked as closed.

Submissions. 22. The plaintiff filed submissions on 4/7/2024 and the defendant on 18/7/2024. I have considered those submissions in the preparation of this judgment. The plaintiff set out the issues arising for determination as follows: whether the defendant was an appointed minister of the plaintiff church; whether there was a trust relationship arising from the appointment; whether the defendant holds title no Nakuru Municipality Block 4/122 in trust for the plaintiff; who is the legal owner of all that property known as Mau Summit Molo Block 1/182 and 182; whether the district Land Registrar’s action of voiding and cancelling the titles to the Molo plots was valid and what reliefs are available to the plaintiff. The plaintiff concluded in its submissions that the defendant admits to have been appointed as a minister under the plaintiff church; that the defendant was entrusted with the plaintiff’s movable and immovable properties upon ordination and a constructive trust in the plaintiff’s favour can be implied, and that indeed the defendant holds the suit properties in trust for the plaintiff and that the Land Registrar acted ultra vires by cancelling the plaintiff’s titles. The plaintiff prays that the court do grant its claim.

23. The defendant on the other hand submitted that the plaintiff lacks locus standi on the basis that the plaintiffs had failed to establish that they were trustees; that the Molo plots were for use by the New Testament Church, Charismata International Ministries and Molo Worship Centre; that the plaintiff’s case is infirm on the basis of lack of facts set out in the plaint to establish a constructive trust and should not be allowed to expand its case by way of submissions; that in any event the plaintiff did not prove entitlement to the property by way of constructive trust, or remedial constructive trust by way of fraud; and finally that the claim for compensation over LR NO Nakuru Municipality Block 4/122 is a liquidated claim that was not strictly proved and which can not therefore be granted.

Disposition 24. The plaintiff’s case is that the defendant breached trust and infringed on its rights. It claims that the 1st defendant donated the suit parcels of land to it and undertook transfers from himself to it and even surrendered the original title deeds to the plaintiff’s national head office; that the plaintiff thereafter invested heavily in the said suit plots by constructing permanent structures; that however, later on the defendant established his autonomy from the church by creating the Charismata Revivals Network and conducting independent programs without approval. It claims that the defendant orchestrated a systematic operation based on deception and misrepresentation to take over the plaintiff’s churches in the Rift Valley region without approval. The defendant also in collusion with the District Land Registrar fraudulently cancelled the titles to the suit properties. It is also alleged that while the defendant was still a minister with the plaintiff church he fraudulently registered Title No. Nakuru Municipality Block 4/122 in his name.

25. After considering the pleadings, the evidence and the submissions this court considered the following to be the issues arising for determination in the present dispute:a.Whether the plaintiffs have locus standi to maintain this action;b.Whether it was fraudulent for the 1st defendant to register the plot No. Nakuru Municipality Block 4/122 in his own name;c.Whether the plaintiff’s titles to plots numbers Mau Summit Molo Block 1/182 and 182 were illegally cancelled and the land subsequently illegally registered in the 1st defendant’s name;d.What orders should issue, including orders as to costs.The issues are discussed as herein under.

a. Whether the plaintiffs have locus standi to maintain this action; 26. I have considered the defendant’s objection to the effect that the plaintiffs lack locus. The gravamen of that objection is that under the provisions of Section 107 of the Evidence Act, the burden of proof fell upon the plaintiffs to demonstrate that they possess locus standi to file the suit on behalf of the New Testament Church of God; that a registered society lacks corporate existence and thus lacks juridical character to sue and be sued as a society and proceedings are normally instituted in the names of the trustees. Citing Pius Watene D Maina (Suing On Behalf Of The Baptist Convention Of Kenya) Vs The Director General Kenya Urban Roads Authority And Another Elc No 3 Of 2020 the plaintiff urges that any person other than a trustee then lacks any locus to sue on its behalf and that where the status of a party is in issue it is upon that party to demonstrate that he has been registered as a trustee. The defendants pointed out that in para 1 and 2 of their defence the defendants denied the plaintiff’s claim that they were trustees. The defendants referred to the plaintiff’s Constitution at para 7 as providing for a Board of Trustees comprising of not less than 3 members. The defendants also submitted that the clause provides for the registration of trustees under the Trustees (Perpetual Succession) Act; that evidence of appointment of Trustees by the National Overseer and the Area Superintendent under the plaintiff’s Constitution is by way of production of minutes; that evidence of registration of trustees is by way of production of a certificate issued upon registration under the Trustees (Perpetual Succession) Act. The defendants further submitted that PW1 expressly admitted in his oral evidence upon cross-examination that he is not a registered trustee and that he did not have any document to demonstrate that any of the plaintiffs was a registered trustee. Neither did he produce minutes where the National Overseer appointed Trustees. The defendants submitted that PW2 reiterated the same position. On the strength of the foregoing the defendants submitted that the plaintiffs have failed to establish that they are trustees duly appointed and approved by the New Testament Church of God.

27. This court has noted earlier while analyzing the contents of pleadings that in their defence the defendants stated that they deny the descriptive parts of the plaint (paragraphs 1,2 and 3). Paragraph 1 of the plaint stated that the plaintiff is a Christian society duly registered under the Societies Act and that it brought the present suit through its Registered Trustees. The defendants thus raised the issue of locus standi in their defence by denial of the contents relating to capacity of the plaintiffs to bring the action on behalf of the New Testament Church of God Kenya.

28. In the amended plaint dated 18/7/2011 the plaintiff did not amend paragraph 1. In this court’s view, the challenge to the capacity of the plaintiffs Moses P.N. Njoroge, Jim Womble and David Hinga Muiruri still stood as at the time of hearing of the evidence of the parties in the suit and the plaintiffs ought to have commenced by demonstrating that they had an answer to the defendant’s claim of incapacity since they were ostensibly suing on behalf of the New Testament church of God Kenya.

29. It is the correct position as stated by the defendants that where a society is a claimant it being an unincorporated body can only sue through the officials or the trustees. This is the position that was adopted by the court in Kipsiwo Community Self Help Group Vs the Attorney General & 6 Others –Eldoret Petition No 9 Of 2013, Kituo Cha Sharia Vs John Ndirangu Kariuki & Another and Dennis Ololoigero & 2 Others V the Art of Ventures Ltd & 2 others Nairobi HCCC 1358 of 2005 (2006) eKLR

30. In Islamia Madrassa Society v Zafar Niaz & 8 others [2021] eKLR the court held as follows:“18. Similarly, in the case of African Orthodox Church of Kenya vs Rev. Charles Omuroka & Anor [2014] eKLR. Justice E. C. Mwita in his Ruling on a preliminary objection raised challenging the plaintiff’s capacity to sue in its own name stated as follows:“The plaintiff has pleaded in paragraph 1 of its plaint that it is a duly registered church. At paragraph 3 of the plaint, the plaintiff has described the 2nd defendant as a duly registered church or organization obviously churches are societies under the Societies Act. Societies do not have capacity to sue or be sued in their own names.”

31. In the present case it is clear that the plaintiffs have come forward professing to be suing on behalf of the New Testament Church of God. The defendant’s only objection is that they are not the registered trustees and that they thus lack locus standi to institute the suit. Constitution of the plaintiff provided for a Board of Trustees. It is these trustees who are supposed to sue on the Church’s behalf.

32. It is trite that when a fact is alleged by a party it is upon that party to establish that fact by way of evidence. Indeed, that is a reflection of the express provisions of Section 107 of the Evidence Act. This court agrees with the defendants in their reliance on Section 112 of the Evidence Act to the effect that in civil proceedings when any fact is especially within the knowledge of any party to those proceedings the burden of proving or disproving that fact is upon that party, and the consequent assertion that the burden of establishing by evidence that the plaintiffs were the registered trustees of the New Testament Church of God was incumbent upon the plaintiffs.

33. This court has perused the proceedings in this case and found that the plaintiffs appear to have learnt too late in the day of their grievous omission to file the Certificate of Incorporation of trusteeship showing they were registered trustees or even any documents to show that they were ordained officials of the New Testament Church of God. After the last witness for the plaintiffs testified, their counsel applied for leave as follows:Ms. Wachira: That is all. This is my final witness. Before we close our case we seek leave to file additional documents in regard to appointment of trustees. We have the minutes, also the documents of the appointment of the two pastors. PW1 and PW2 as well as PW3 and a new constitution governing the church, showing the changes. The plaintiffs were the trustees at the time of the institution of this suit.

34. Unfortunately for the counsel the evidence expressed from the mouths of the witnesses did not in the least support her statement that “the plaintiffs were the trustees at the time of the institution of this suit.” By her application also, she acknowledged on behalf of her clients that there was no document filed in the court record, leave alone attempted to be produced, that showed that was the case.

35. PW1 had, in cross-examination as to whether he was a registered trustee, stated as follows:“I am not a registered trustee of the New Testament Church of God. It is a registered Society.”

36. PW3 had stated as follows in his evidence-in-chief:“I am also a trustee. I took over all the duties of Moses Njoroge. I am mandated by the church constitution in Kenya and the international church to appoint pastors, District and regional overseers and to see that they do their work of leadership in accordance with the constitution of the church.”

37. Upon cross-examination by Mr Githui for the defence PW3 had stated as follows:“We did not file the document showing trusteeship. Trustees serve for 4 years’ renewable… we have a current constitution. I did not carry the new constitution. I have nothing now showing I am a trustee.”

38. To Ms. Wachira’s application counsel for the defence submitted as follows:Mr. Githui: That was the last witness. I am at a loss as to how she wishes to proceed save by recalling all the witnesses. Our clients will be prejudiced. We proceeded on the basis of lack of capacity. If the leave sought is allowed, we need have a look at the documents.

39. In disposing of the application this court rendered a ruling dismissing the application, stating as follows:On one hand there is a plaintiff or plaintiffs who have had a case pending in this court since it was filed on 1/9/2002 that is about 18 years ago and who, it is to be presumed, have been anxious to have it expeditiously concluded. Those plaintiffs have also had 3 years from 6/11/2019 when PW1 last testified to prepare further for the hearing and conclusion of their case, including applying for leave to file new documents in the matter. They never made such an attempt.On the other hand, after PW1 testified the defendants sought leave by a formal application to file their further documents in 2020. The defendants action never spurred the plaintiffs into taking a harder look at their own documents and correcting any gaps that may have been noted.This is an adversarial situation that the litigants herein find themselves. Often the court finds itself between a rock and a hard place in making a decision on such an application as has been made by Ms. Wachira for the defendants, for in its granting may he much prejudice to one party – defendant who may have agreed to participate the hearing on the basis in this case, of the perceived state of pleadings and evidence on record and no more. I do not agree with Ms. Wachira that the grant of the application would not prejudice the defendants, for as Mr. Githui asks on the defendant’s behalf, how would those documents be dealt with if not by recalling the plaintiffs’ witnesses? I do not also find that, given the three-year period that has lapsed since the last substantive hearing of the suit, the plaintiffs have given sufficient explanation for their delay in filing that document that Ms. Wachira now seeks to file. As stated this is an old case and all the plaintiffs’ witnesses having testified only more delay will ensue from the granting of Ms. Wachira’s application.Justice must be served expeditiously as envisaged by Article 159(1) of the Constitution and that article refers to justice for all including the defendants herein, who had two witnesses ready to testify. I find that owing to the delay that may result in the disposal of this case if the application is granted the application should not be granted. I find that it has no merit and I hereby decline to grant the leave sought.

40. The hopes of calling in evidence the documents that could have established that the plaintiffs were the registered trustees of the New Testament Church of God thus ended with the fatal omission on the part of the plaintiffs to file their documents to support their claim to trusteeship.

41. The conclusion that arises from the foregoing is that the plaintiffs have failed to prove a very preliminary fact, that they are the registered trustees of the New Testament Church of God Kenya on behalf of which they purported to bring this suit. Consequently, they have no locus standi to institute or maintain the suit and this court therefore needs not address the other issues listed herein above for determination, and I therefore strike out the present suit on that ground per se. Each party shall bear its own costs of the suit.

RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 23RD DAY OF SEPTEMBER, 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI