[2023] KEHC 23694 (KLR)

Ogendi & 7 others v Nyaanga (Civil Appeal E016 of 2023) [2023] KEHC 23694 (KLR) (12 October 2023) (Ruling)

Neutral citation: [2023] KEHC 23694 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E016 of 2023

WA Okwany, J

October 12, 2023

Between

Reverend Dr James Ogendi

1st Appellant

Reverend Rose Nyauma

2nd Appellant

Reverend Daniel Make

3rd Appellant

Reverend Peter Karaya

4th Appellant

Reverend William Omaiyo

5th Appellant

Reverend Jackson Mireri

6th Appellant

Reverend Bathsheba Bitoyo

7th Appellant

Richard Gechiko – District Clerk

8th Appellant

and

Reverend Enock Nyaanga

Respondent

Ruling

1. This ruling is in respect to the application dated May 22, 2023 wherein the Applicants/Appellants seek the following orders: -1. Spent.2. That this Honourable Court be pleased to grant in the interim a stay of execution of the ruling delivered on May 19, 2023 and the court be further pleased to issue orders of injunction against the Respondents for purposes of preservation of the substratum and other activities being run within the offices at land parcel North Mogirango Boisanga 6606 and the Respondents be injuncted and restrained either by themselves, their agents and or persons under them from conducting any church activities be it administrative or otherwise, receiving funds from other Pentecostal Assemblies Kenya Churches within Nyaramba PAG Church District or acting or referring to carry out the duties under the names and Title of the Oversea within the Nyaramba District.3. That the court be pleased to order the Application and Order served upon the Respondent for Inter parties hearing.4. That this Honourable Court be pleased to grant in the interim and pending the hearing and determination of this appeal a stay of execution of the ruling delivered on May 19, 2023 and the court be further pleased to issue orders of injunction against the Respondents for purposes of preservation of the substratum and other activities being run within the offices at land parcel being North Mogirango Boisanga 6606 and the Respondents be injuncted and restrained either by themselves, their agents and or persons under them from conducting any church activities be it administrative or otherwise, receiving funds from other Pentecostal Assemblies Kenya Churches within Nyaramba PAG Church District or acting or referring to carry out the duties under the names and Title of the Oversea within the Nyaramba District.5. The court be pleased to give directions on how the Appeal.6. That the costs of this application be provided for.

2. The application is supported by the affidavit of the Appellants’ Advocate and is premised on the grounds that: -a.That a Memorandum of Appeal has been filed in the High Court of Kenya at Nyamira against the ruling of the Trial Magistrate delivered on the May 19, 2023 being the Nyamira High Court Civil Appeal No. ….. Of 2023. b.That the Applicant appellant has already been granted Leave to Appeal against the said Ruling thus making it proper for the Applicant Appellant to move this court. The Leave was granted on the May 19, 2023. c.The Appellant believes that the trial court failed to appreciate the law and the facts placed before it when the Applicant filed their Application before the court.d.The reasons given by the Appellant were either ignored and or overlooked by the trial court thus arriving at a wrong decision.e.Despite a long and lengthy ruling, the Appellant believes that the trial court failed to note that the Application had not been opposed despite the Respondent Counsel being duly served.f.The suit from being commenced at the lower court, the same affects the rights of more than 1000 worshippers and that such a decision by the trial court has brought a lot of anxiety, strife, conflict, unrest, disorder and disturbance within the church; fact which was not there when the interim orders were in place.g.The trial court aggrieved the Appellants and that is the reason giving rise to this appeal.h.The applicant has a good and strong case in his appeal which has raised triable issues as such his appeal has great chances of success.

3. The Respondent opposed the application through the Replying Affidavit sworn on June 9, 2023 wherein he avers that the Appellants’ suit before the Lower Court was procedurally dismissed after the Appellants went into a slumber and that at no time did this court order/direct that a contempt of court application be filed before the Lower Court.

4. He further states that the appeal is inept, weak with no chances of success as the Appellants have not explained why they did not prosecute the case for a period of over 3 years.

5. He further states that the prayer for stay of execution of the ruling dismissing the suit has no basis or foundation and that the injunction orders sought have no bearing since he is no longer a member of the subject church.

6. It is the Respondent’s averment that he has no interest or any claim over the office of the Overseer of Nyaramba District since he is currently based at Ikonge District.

7. The Respondent maintains that the Appellants have not demonstrated that he intends to interfere with the affairs of the church at Nyaramba District so as to warrant the granting of orders of stay of execution or injunction.

8. The application was canvassed by way of written submissions which I have considered.

9. The main prayers sought are orders for stay of execution of the ruling delivered on May 19, 2023 and injunction against the Respondent.

10. Stay pending appeal is anchored under Order 42 Rule 6 of the Civil Procedure Rules which stipulates as follows: -6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except appeal case of in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless—(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.(3)Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.(4)For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.(5)An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.(6)Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.

11. In the present case, I find that the Appellants filed the instant application without delay as the impugned ruling was rendered on May 19, 2023 and the instant application filed a few days later on May 22, 2023.

12. On substantial loss, I note that even though the Appellants did not explain/specify what injury they will suffer if the stay sought is not granted besides the claim that the impugned ruling affects the right of more than 1000 worshipers and is likely to cause strife, anxiety and conflict. I also note that no material was placed before this court to show that there is strife or conflict in the subject church. Furthermore, the Respondent has indicated, in his sworn Replying Affidavit, that he has no interest whatsoever in the said church as he has since relocated to a different church. I am therefore not persuaded that the application satisfies the parameters set for the granting of orders for stay of execution pending appeal.

13. In any event, the orders appealed against are negative orders dismissing the Appellants’ application to set aside orders dismissing the main suit for want of prosecution. I am of the view that in the circumstances of this case, there are no orders to be executed by the Respondent save orders for costs, if any, which the Appellants have not referred to in the application.

14. Turning to the prayer for injunction to restrain the Respondent from carrying out activities at the Nyaramba Church, I will refer to case ofGiella v Cassman Brown (1973) EA 358where the principles governing the granting of orders of injunction were discussed, namely; that an applicant for an order for injunction must demonstrate that he has a prima facie case with high chances of success; that he may suffer irreparable unless the orders sought are granted and that the balance of convenience favours the granting of orders of injunction.

15. Applying the above principles in the present case, I note that the Appellants were expected to first and foremost demonstrate that they have a prima facie case against the Respondent.

16. The Respondent has however explained, through his Replying Affidavit, that he no longer has any interest or dealings in Nyaramba Church as he has moved to Ikonge Church.

17. I note that the Appellants have not demonstrated that the Respondent continues to conduct Overseer functions in their church. I am therefore not satisfied that the application satisfies the requirements for the granting of the orders of temporary injunction.

18. In sum, I decline to grant the prayers sought in the application dated May 22, 2023 with not orders as to costs.

19. I direct the Appellants to prepare the Record of Appeal and to set down the appeal for hearing within sixty (60) days from today’s date.It is so ordered.

RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT NYAMIRA VIA MICROSOFT TEAMS THIS 12TH DAY OF OCTOBER 2023. W. A. OKWANYJUDGE