[2022] KEHC 9791 (KLR)

Ojako & 3 others v Obuya & 7 others (Civil Case 12 of 2020) [2022] KEHC 9791 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9791 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Case 12 of 2020

FA Ochieng, J

July 14, 2022

Between

Martin Wambura Ojako

1st Applicant

Jane Mcochodho

2nd Applicant

Phelics Odera Ongong’A

3rd Applicant

Philip Ochieng Ojwang

4th Applicant

and

Charles Odhiambo Obuya

1st Respondent

Peter Ochieng Anam

2nd Respondent

Paul Maurice O. Ojoo

3rd Respondent

John Obiero Ojalla

4th Respondent

Hellen Ayuma Onyisi

5th Respondent

Raphael Peter A. Oyoo

6th Respondent

Beldina A. Okello

7th Respondent

Mariko O. Okwach

8th Respondent

Judgment

1. The determination before me is a Notice of Preliminary Objection which was pegged upon Section 7 of the Civil Procedure Act.

2. Essentially, the Defendants assert that the suit herein is res judicata. They asserted that the matters being raised in this suit had already been determined in an earlier case.

3. The earlier case was that of Republic vs The Registrar Of Societies and the Hon. Attorney General, Misc. Application No. 329 of 2018.

4. Whilst conceding that the earlier case had been determined, the Plaintiffs have submitted that the matters raised in the present case were not directly and substantially in issue in the former case.

5. The Plaintiffs further submitted that the parties to this suit were not the same as the parties in the former suit.

6. I note that all the eight (8) Defendants herein are the very same persons who are cited as the Interested Parties in the former case.

7. However, the Plaintiffs cited in this case are different from the 4 Applicants in the former case.

8. As can be noted from the Judgment delivered by Mativo J. in the former case, the dispute in that case was in relation to bona fide officials of the church named God’s Last and Final Call Church Ministry.

9. The Applicants had lodged Judicial Review proceedings, urging the Court to find that they were the legitimate office bearers of the church.

10. In that former case, the Applicants asked the Court to find that the Interested Parties were wrongfully in occupation of the respective leadership positions in the church.

11. The dispute over the leadership of the church had arisen following the demise of the Most Shepherded Arthur Alfred Oguta, who had been the Chairman.

12. At paragraph 19 of the Plaint herein, the Plaintiffs made reference to;“…….. their church (which) was founded by a spiritual leader who is the late pastor, ‘Arthur Alfred Kepha Oguta’, who died in office, leaving his deputy behind, and according to their church constitution, the deputy succeeds him.”

13. At paragraph 21 of the Plaint, it was asserted that the persons who were currently in office, were not the legitimate office bearers of the church.

14. The Plaintiffs prayer, inter alia, was that the Defendants be restrained from interfering with church activities.

15. The Plaintiffs also pray that the following persons be recognized as the legitimate office bearers;i.John Ajuoga Mboro;ii.George Amara Wagondo;iii.Boaz Okello Onyango; andiv.Richard Agwenge Onyango.

16. The Court notes that all the four persons, fronted by the Plaintiffs as constituting the legitimate office bearers, were the Exparte Applicants in the former case.

17. In his Judgment, in the said former case, Mativo J. noted that the Applicants had sought orders;a.to quash the letter from the Registrar of Societies, which affirmed the nomination of the Interested Parties as the office bearers of the church;b.to compel the Registrar of Societies to affirm the nominations of the applicants as the office bearers; andc.to prohibit the Interested Parties from interfering with the applicants’ dockets in the church, or with the assets of the church.

18. It is noteable that the subject matter of the 2 cases is the leadership of the church. I find that the matters in issue in this case were also directly and substantially in issue in the former case.

19. I also find that although the Plaintiffs herein are not the same persons who were the exparte Applicants in the former case, they were actually fronting for the same exparte Applicants.

20. Mativo J. held as follows, in his judgment;“In the instant case, the 1st Respondent performed the duty by refusing to register the Notification. Mandamus cannot issue where the duty has been performed. There is no refusal to act.”

21. In effect, the Court has already made a determination, that the Registrar of Societies had properly exercised his discretion, when he declined to register the notification presented by the exparte Applicants.

22. The learned Judge further held as follows;“No material has been presented before me to show that the decision is tainted with illegality or procedural impropriety, to warrant the writ of certiorari ……”

23. By so holding, the Court declined the exparte Applicants’ request which would have quashed the registration of the Defendants herein as the office bearers of the church.

24. Thirdly, Mativo J. held thus;“The applicants also seek an order of Prohibition. The writ of Prohibition arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person. A prohibiting order is similar to a quashing order, in that it prevents a tribunal or authority from acting beyond the scope of its powers. The key difference is that a prohibiting order acts prospectively, telling an authority not to do something in contemplation, However, the Interested Parties have already been registered. There is nothing to be prohibited. A writ of prohibition cannot issue in the circumstances.”

25. The Court proceeded to dismiss the former case as it was found to be totally unmerited.

26. In my considered view, those issues cannot be raised again, in a new case.

27. I therefore uphold the Preliminary Objection; and hereby strike out the Plaint.

28. The Plaintiffs will pay to the Defendants, the costs of the suit.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF JULY 2022FRED A. OCHIENGJUDGE