[2005] KEHC 61 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Suit 1506 of 2000

1. PAUL ETEMESI

2. SEPHANIA AKHONYA

3. JAMES MABINDA

4. ZEBEDEE OSABWA

5. RODHA ATANA

6. ARTHUR MUMANYI

7. MOSES NDENGU

8. DAVID ONG’AYI

9. DANIEL AMBUNDO

10. JOSECK ASWANI

11. MILKA MALENYA

12. BEN MUMANYI

(Suing on their own behalf and on behalf of the members of the local

congregation of Buru Buru Community Centre Church of God in

East Africa (Kenya)……….......................……………PLAINTIFF/RESPONDENTS

-VESRUS-

1. THE EXECUTIVE COUNCIL CHURCH OF GOD IN EASTAFRICA (Kenya)

2. THE RT. REV. DR. BYRUM MAKHOKHA

3. THE CHURCH OFCOMMISSION……...........……. DEFENDANTS/APPLICANTS

RULING

This ruling is delivered pursuant to the provisions of order 17 rule 10(1) of the Civil Procedure Rules. After hearing the application but before writing his ruling, Hayanga, J. retired from the Bench. That provision enables a judge other than the judge who heard the application to take over the application and proceed with it if the judge who heard it is prevented from concluding the matter by death, transfer or other cause. I think retirement is “other cause” within the meaning of that rule. Counsel for the parties have not raised any objection to my delivering a ruling in this application on the basis of the evidence taken and submissions made before Hayanga, J.

The plaintiffs/Respondents and the Defendants/Applicants are members of the Church of God in East Africa (Kenya) which has its base at Kima in the Vihiga District of the Western Province and churches elsewhere in the Republic of Kenya s including Buru Buru here in Nairobi.

It is apparent from the record that following a disagreement between the members of the Buru Buru Church and the First Defendant/Applicant over the running of the Burur Buru Church, the first Defendant/Applicant appointed a commission in February 2000 to run the affairs of the Buru Buru Church. The Plaintiff/Respondents and other members of the Buru Buru Church complained that the Commission locked them out of the church and denied them the right to attend church and worship. They contended that the actions of the First Defendant/Applicant and the Commission were illegal and in breach of the Constitution of the Church of God in East Africa. Accordingly, on 11th September, 2000, the Plaintiff/Respondents on their own behalf and also on behalf of the members of the Buru Buru Church filed a suit against the Defendants/Applicants seeking the following among other reliefs:

“(i) A mandatory injunction compelling the Defendants by themselves, agents, servants otherwise to open the gates to the Buru Buru Community Center standing on LR. NAIROBI BLOCK 79/820 and allow the Plaintiffs have access to the church for purpose of worship”

“(ii) A mandatory injunction compelling the Defendants by themselves, agents, servants or otherwise howsoever to remove the private guards stationed at the compound of the Centre.

“(iii) An injunction restraining the Defendants by themselves, their agents or servants from interfering with the Plaintiffs worship services at the Buru Buru Community Centre.

On the 15th December, 2000 the case came before Commissioner of Assize Visram (as His Lordship then was) and a consent order was recorded in the following terms.

“THAT this suit be and is hereby marked as settled in the following terms:

(a)THAT the parties to this suit be and are hereby agreed that church premises for Buru Buru Church be re-opened for normal church activities.

(b)THAT the Defendants do make appropriate arrangements with the relevant Government authorities to re-open the Buru Buru Church for normal activities as soon as possible.

(c)THAT once the Buru Buru Church is re-opened for normal Church activities, the Plaintiffs and other members of the Church of God wanting to worship thereat be allowed access to, and use of, the church subject however to adherence to the code of conduct enshrined in the Constitution of the Church of God in East Africa.

(d)THAT the Plaintiffs for themselves and on behalf of the other persons whom they represent in this suit hereby undertake not to cause or participate in any acts at the Church intended to, or which may cause violence, the disruption of church activities and a breach of piece.

(e)THAT the Plaintiffs for themselves and on behalf of the other persons whom they represent in this suit hereby acknowledge and undertake to respect the lawful authority and power bestowed upon the General Assembly and the Executive Council Of the church of God in East Africa by the Constitution of the said Church.

(f)THAT parties to this suit acknowledge the existence of appropriate provisions in the said Constitution for the resolution of conflict, and other Church matters, and will adhere to the same at all times.

(g)THAT the General Assembly and the Executive Council of the Church of God in East Africa being mindful of the need to facilitate reconciliation, and in order to promote a fresh start at the Buru Buru Church, hereby undertake to exercise their constitutional power to re-deploy the paster currently ministering at the Buru Buru church elsewhere and to identify and to deploy to the said church a suitable replacement as soon as possible.

Those were the terms of the consent order on the basis of which the suit was settled. As subsequent events were the prove, the consent order became the subject of fresh disputes between the parties with each accusing the other of breaching the terms of settlement. The Defendants/Applicants accused the Plaintiffs/Respondents of using the Church for improper purposes, of committing acts of violence against the employees of the First Defendant/Applicant and of damaging the property of the Church. The Plaintiffs/Respondents on the other hand complained that the First Defendant/Applicant amended the Constitution of the Church without consulting them and of continuing to deploy at the Buru Buru Church Pastors in whom the Plaintiffs/Respondents had no confidence.

With a view to seeking the court’s intervention in remedying these alleged breaches of the consent order, the Defendants/Applicants took out a Notice of Motion on the 11th September 2002 under Section 5 of the Judicature Act and applied for the committal and imprisonment of all the twelve Plaintiff/Respondents for alleged contempt of court. The supporting affidavit to the Motion was sworn by the Reverend Titus Mulwale on the 11th September 2002. The order for committal was sought on the grounds, inter alia,that the Plaintiff/Respondentshad fragrantly disobeyed the consent order. The Reverend Mulwale deponed that the Plaintiffs/Respondents had participated in acts of violence and disrupted the running of the Buru Buru Church; that they had failed to acknowledge and respect the lawful authority and powers of the Church of God in East Africa; that they had hindered the Defendants/Applicants from installing new Pastors at the Church and further that the Plaintiff/Respondents had destroyed the property of the Church.

The Reverend Mulwale made other allegations in his said affidavit which included:-

“7. THAT the Plaintiff/Respondents have by themselves and/or agents incessantly engaged in criminal activities within the Buru Buru Church and against the Defendant’s and/or their employees which matters are now the subject of a criminal case in court.” (Emphasis added).

“8 (iii) On 25th November, 2001 several people led by Ben Momanyi, the 12th Plaintiff, went in to the church and threatened Pastor Reverend Ayub Otanga with eviction and bodily harm.”

“(iv) On 31st December, 2001 Ben Momanyi and James Mabinda went to Reverend Khaemba Ashiko’s house within the church’s compound and harassed him and his wife while ordering them to move out of the church house. They took away 206 English Hymn Boos, 26 Swahili Hymn Books and pieces of table clothes.

(vii) On 7th July 2002 a group of people led by James Mabinda, Joseck Aswani and Ben Momanyi went in to the church compound and welded the doors of the Pastors’ houses. This matter is now a subject of a criminal case pending in court.

“(viii) On 20th July 2002 James Mabinda, Ben Momanyi and Moses Ndegu together with a group of women went to the Pastors’ house and poured water on Reverend Khaemba Ashiko forcing him and his children out of the house.”

As would be expected, the application was opposed and Mr. Ben Momanyi, the 12th Plaintiff/Respondent, swore the replying affidavit on the 25th October 2002 on his own behalf as well as on behalf of the other Plaintiffs /Respondents. He denied all and several the allegations made against them by the Rev’d. Mulwale and accused the Applicants of contemptuously breaching the consent order.

Further, he accused the Applicants of attempting to impose a new Pastor on the Respondents without consulting them and of re-opening the Buru Buru Church without first holding a cleansing ceremony. Mr. Mumanyi also alleged that the members of the Buru Buru Church has been subjected to harassment by the Defendants/Applicants calling the police to arrest them and drive them out of the Church. He denied any involvement by the Plaintiffs/Respondents in acts of violence against the employees of the Defendants/Applicants at the Buru Buru Church as alleged by the Rev’d Mulwale.

That, in summary, is the application which Hayanga, J. Heard.

Learned Counsel for the Applicants was emphatic that since the Respondents had disobeyed the consent order and were, therefore, guilty of contempt of court, the order for committal sought against them should be granted. In his said affidavit and also in his subsequent affidavit (in response to the said replying affidavit by Mr. Mumanyi) made and filed on the 9th December, 2002, the Rev’d Mulwale deponed that the Respondents had engaged in criminal activities within the Church. These allegations include assaults, threats of violence, theft and destruction of property. It would appear that the alleged criminal activities were duly reported to the Police and that the persons who were alleged to have been involved have been charged in court.

The Rev’d Mulwale also stated that a group led by Mr. Ben Mumanyi went into the Church and threatened Pastor Reverend Ayub Otanaga with eviction and bodily harm. He also said that on the 31st December, 2001, the same Mr. Ben Mumanyi and Mr. James Mabinda went to the Rev’d. Khaemba Ashiko’s house within the Church compound and harassed him and his wife. In the process, he claims, they stole a large number of hymn books and table clothes.

The difficulty I have with the allegations made by the Rev’d. Mulwale against the Respondents is that the persons alleged to have been the victims of the alleged criminal acts of the Respondents, namely Pastor Reverend Ayub Otanga, the Reverend Khaemba Ashiko and his wife did not swear any affidavits to support the allegations. Without that evidence, I am left in some doubt whether the events alluded to by the Re’d. Mulwale actually took place.

The Rev’d Mulwale has also said that a complaint had been filed with the Police and that the persons alleged to have been involved charged in court with criminal offences. If they are convicted, they will be sentenced to terms of imprisonment and/or fined. By bringing this application while the criminal case against the Respondents is still pending, it seems to me that the Applicants are taking a course of action likely to prejudice the fair trial of the respondents in the event that this application succeeds

Having considered the evidence in its totality, I am also of the view that both the Applicants and the Respondents are equally to blame for the problems which have arisen since the filing of the consent order. The Respondents claim that the applicants amended the Constitution of the Church of God in East Africa behind their back and also that they attempted to impose a Pastor on them at the Buru Buru Church without their consent. These are functions which the Applicants may well have been empowered to perform under the Constitution of the Church but even if there was any doubt as to that, the Respondents had no right to resort to violent behaviour- if that be the case.

Court orders must be obeyed so that the authority of the courts is not by any means undermined. Where a charge of contempt of court is proved, the court shall not hesitate to commit the offender and impose appropriate sanctions. In the present case, however, the Applicants have proved only that the parties can not agree on the interpretation of the terms of the consent order. Such inability, and the consequent disagreement, cannot, in my judgment, constitute disobedience of the order.

Accordingly, the application must fail and it is, therefore, ordered that the Notice of Motion dated and filed on the 11th September, 2002 be and is hereby dismissed. Given the nature of the dispute and the conduct of the parties, I make no orders as to costs.

Dated and delivered at Nairobi this 21st day of January, 2005.

P. Kihara Karuiki

Judge