[2022] KEHC 16194 (KLR)

Orthodox Diocese of Kisumu and All & Western Kenya v Amadiva & 25 others (Constitutional Petition E007 of 2022) [2022] KEHC 16194 (KLR) (9 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16194 (KLR)

Republic of Kenya

In the High Court at Kakamega

Constitutional Petition E007 of 2022

PJO Otieno, J

December 9, 2022

Between

Orthodox Diocese of Kisumu and All & Western Kenya

Petitioner

and

Athanasius Omare Amadiva

1st Respondent

Nicodemus Collins Manguari

2nd Respondent

Innocent Agrey L. Muchesi

3rd Respondent

Johannes Mutsotso

4th Respondent

Christos Richard Amuyunzu

5th Respondent

Polycapos Ominde

6th Respondent

Hermogenis Hezekia Otara

7th Respondent

Theodoros Josephat Oura

8th Respondent

Constantine Rodgers Gao

9th Respondent

Maximos Alfred Mweremi

10th Respondent

Stephanos Tom Magomere

11th Respondent

Bathlemew Muhando Joshua

12th Respondent

Patapios Philip Chasia

13th Respondent

Romanos Jumba Mahaya

14th Respondent

Theodoros Ombisa

15th Respondent

Angelos Ombisa

16th Respondent

Menas Benson Oroni

17th Respondent

Evlogos Oyaya

18th Respondent

Arsenios Ronald Chitwa

19th Respondent

Prodhromos Kabala

20th Respondent

Epiphanios Ernest Omusundi

21st Respondent

Nektarios Protas Isanya

22nd Respondent

Alexanda Otoli

23rd Respondent

John Karakacha

24th Respondent

Nicanor Cosmas Bidali Shilesi

25th Respondent

Petros Patrick Okelo

26th Respondent

Ruling

1. The dispute in this petitions comes as out as a contest between the petitioner and the respondents on who, between what is called the Greek Orthodox Church and the Russian Orthodox Church, the Kenyan Church should pay allegiance to. It is said that the Russian Orthodox Church has been wooing the Kenyan Church to its side and the respondents have responded to such approach by denouncing, renouncing and removing themselves from the petitioner by joining the Russian Orthodox Church a fact which led to their suspension.

2. However, despite such suspension and renunciation the respondents have persisted in their continued occupation and use of the premises belonging to the petitioner and are converting the same premises from the conduct of the affairs of the Russian Orthodox Church and in doing so causing breach of the peace and interfering with the freedom of worship of the members of Greek Orthodox Church. The petitioners therefore take the view and position that by conduct the respondents have and shall continue to interfere with the freedom of worship of its members, the right to free association as well as right to fair administrative actions. When served with the petition and an application for conservatory orders, the respondents raised a preliminary objection setting out three points:-

A. Lack of Jurisdiction(i)This honourable court lacks jurisdiction to hear and determine the petition in so far as the same canvasses an employment and labour dispute reserved or the Employment and Labour Relations Court pursuant to article 162 of the Constitution of Kenya.(ii)This honourable court lacks jurisdiction to hear and determine the petition in so far as the petitioner asserts ownership rights which ought to be canvassed before the Environment and Land Court pursuant to article 162 of the Constitution of Kenya.(iii)This honourable court lacks jurisdiction to preside over allegations of breach of peace (paragraphs 21 and 23 of the petition) which is a matter of criminal law and in respect of which investigating and prosecuting authorities have powers to handle and, if necessary, bring appropriate criminal charges to a court of competent jurisdiction.

B. Lack of Locus Standi(i)The petitioner, if a registered society, can only bring proceedings through its registered officials.(ii)Notwithstanding the foregoing, there is nothing displaced by the petitioner to prove its status as a society.

C. Lack of Cause of ActionThe petition is incompetent in so far as it does not put forth particulars of breach and the nature of injuries suffered or likely to be suffered by the petitioner. 3. The parties perceive the points to be capable of disposing of the petition and therefore agreed that the objection be canvassed by way of written submissions. As a result, the petitioner filed written submissions dated July 28, 2022 while the respondent did so on September 20, 2022.

4. As the proponent of the objection, the respondent, takes the position that being a society registered under Societies Act it has no legal capacity to sue nor be sued. The decision in African Orthodox Church v Amuroka & Another [2014] eKLR was cited for the proposition that the church being registered under the Societies Act has no capacity to sue in its own name nor can it be sued in own name. To the respondent there are a plethora of decision on the point to the extent that it was beyond doubt settled.

5. On the second point, it is asserted that the petition raises questions of employment relationship, title to land and criminal conduct which should be left to be handled by the Employment and Labour Relations Court and that investigative and prosecuting agencies be left to deal with criminal aspects. On that point Muema Mativo v Director of Criminal Investigation [2021] eKLR for the proposition that constitutional petitions are serious matters which ought not be treated as substitute for ordinary civil or criminal cases.

6. For the petitioner, opposition was mounted against the preliminary point on the basis that neither employment nor land questions had been raised but the question of freedom of worship of its members as is disclosed in the body of the petition and the prayers made.

7. On locus standi, the petitioner cited to court the provisions of article 22 and 158 of the Constitution as interpreted by the Supreme Court in Mumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR for the proposition that the Constitution and the rules made thereunder defined the word person to include association or other body of persons whether incorporated or unincorporated. A recent decision of the High Court in Wilson Bursen Mokua v Central Kenya Conference of Seventh Day Adventist [2021] eKLR was cited to be the correct interpretation of the law and the earlier decisions by the High Court even if seen as a plethora were termed to be inconsistent with the 2010 Constitution.

8. On whether there was a serious constitutional question wanting the attention of the court, the petitioner invoked article 165 (3) b of the Constitution to vest the jurisdiction in the High Court and that the question in the petition is just; whether the rights under article 32 have been denied, violated, infringed or threatened. The preliminary point was then questioned whether it fits a pure point of law even on the standards of Anarita Karimi’s case and the court urged that the same be left to be urgued at the hearing without the court seeking to undertake a mini trial.

Analysis and Findings: 9. It is now trite that a preliminary objection properly so called, must be self-evident and self-speaking on a pure point of law and not facts. It is argued on the understanding that what is pleaded or asserted by one party is correct, conceded or just incapable of contest by the other side. A point ceases to be a preliminary objection when the facts call for ascertainment or where the courts discretion is sought to be exercised.

10. In this matter, the notice of preliminary objection as set out above, alleged that the petitioner has no locus to bring the petition on account of lack of legal personality; that the court lacks jurisdiction to entertain the matter and lastly that there is no cause of action disclosed.

11. The question of jurisdiction being all important must be the starting point. The jurisdiction of this court in handling questions whether or not a constitutional right or fundamental freedom has been denied, violated, infringed or threatened is ordained by article 165 (3) b. A casual reading of the petition here show that the claim is that, by seeking to persist in the use of premises of the petitioner after renouncing allegiance to the Greek Orthodox Church, the respondents are interfering with the rights of the church followers enshrined under article 32. I see no claim to title to land nor question involving employment and labour relationships. If such exist, the same have not been pleaded and thus not apparent to court and do not arise as of clear implication on the positions pleaded by the parties. It thus follows that the point was not properly raised and articulated and must thus fail. It must fails because what is pleaded is properly for determination by this court.

12. On the second question of the standing of the petitioner to bring and maintain the petition on the basis that it is not neither a natural or juristic person, the answer to this calls for no deep jurisprudence because a reading of both articles 22 and 260 has a ready and simple answer. The Constitution empowers every person “with right to mount a petition claiming denial, violation, infringement or threat of a right or fundamental freedom”. It constraints not that right to the limitations of civil litigation as to legal standing and stature of the petitioner. For the purposes of the Constitution and litigations under it, the word person is defined by article 260 to include a company, association or other body of persons whether incorporated or corporated. If the plain reading of the Constitution was to present any difficulty, the decision by the Supreme Court of Kenya inMumo Matemu v Trusted Society of Human Rights Alliance [2014] eKLR does not. In that decision the Supreme Court said:-“In constitutional adjudication therefore, the traditional strictures of locus have been broken to allow every person the capacity to file a constitutional claim.”

13. It merits reiterating that the Kenyan Constitution downgrades and discourages undue technicalities in matter access to justice. It abhors any strictures to attainment of substantive justice and breaks every hurdle that militate access to justice.

14. In coming to this conclusion the court takes note that the decision relied on by the respondent in grounding the preliminary objection was a decision on a civil dispute with no constitutional point raised. The thresholds there are clearly distinguishable from those in a constitutional petition claiming a denial or violation of a fundamental freedom of right. In any event even if that was to be the law as held by the High Court, that decision is merely persuasive yet the decision by the Supreme Court, on the exact subject is binding upon the court.

15. On this point, the court equally finds that the objection was improperly taken and without due appreciation of the applicable law. The point also fails.

16. Lastly, whether or not there is a cause disclosed, is a matter that calls for minute assessment of the allegations after all materials are availed to the court by both parties at the trial. That is beyond the realm of preliminary objection. Granted that there are instances the court may dismiss a petition in limine, that is only where the matter as pleaded is plainly and obviously, without the need to interrogate the foundation of the dispute, an abuse of the court process hypothetical and clearly abstract. Here I see a possible arguable point. Even if it is only a single point, which must not necessarily succeed after trial, the court has a duty to hear the parties on the merits without shutting them out and obstructing them from the seat of justice.

17. In conclusion therefore, the points raised as preliminary points of law lack merits are hereby dismissed with costs. I award costs to the respondent because the raising of the points was clearly unnecessary, has only ended in the delay of the matter and thus needs to be discouraged so that litigation is not delayed and convoluted by points which ought to be argued in the usual way but parties improperly raise same as preliminary points.

18. Let the respondents, if they have not responded to the petition, do so within seven (7) days so that the matter may be progressed towards closure. The matter is stood over to February 13, 2023 for case conference.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF DECEMBER 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:No appearance for the petitionerNo appearance for the respondentCourt Assistant: Polycap