[2016] KEELC 742 (KLR)

REPUBLIC OF KENYA

IN THE HIGHCOURT

AT MILIMANI LAW COURTS NAIROBI ELC DIVISION

CASE NO1216 OF 2014

THE REGISTERED TRUSTEES OF THE AFRICAN INDEPENDENT

PENTECOSTAL CHURCH OF AFRICA.........................PLAINTIFF/APPLICANT

=VERSUS=

ARCH BISHOP AMOS

MATHENGE KABUTHU....................................1st DEFENDANT/RESPONDENT

CHIEF LAND REGISTRAR............................2nd DEFENDANT/RESPONDENT

RULLING

There are two applications herein for determination. The first one is dated 12th September 2014, and the second application is dated 27th February 2015, respectively. In the Notice of Motion dated 12th September 2014, the Plaintiff has sought for the following orders.

1. Spent

2. Spent

3. Spent

4. Spent

5. That pending the hearing and determination of this suit an order does issue directing the first defendant to immediately deposit in court with the Deputy Registrar of the Honourable Court the plaintiffs corporate seal and all title documents of the church properties including and not limited to those in prayer 3 above

6. That pending the hearing and determination of this suit an order of injunction does issue restraining the first defendant his agents, commissioners appointed by him, or servants, followers or otherwise from continuing any forms of development, constructions demolitions sale, transfer, mortgage, charge or any form of dealings whatsoever with any of the church properties including LR NRB. Block 126/368.

7. That pending the hearing and determination of this suit an order of inhibition does issue directed at the 2nd defendant and any persons acting on delegated authority from him including the county registrars of land not to allow any change of the trustees of the plaintiff or any transactions or dealings of whatever nature involving any of the plaintiffs church properties including those listed in prayer 3 above

8. That the costs of this application be provided for.

The application was supported by the grounds stated on the face together with the supporting and supplementary affidavit of Simon Peter Mwangi sworn on the12th September 2014,and 21st November 2014, as one of the trustees of the plaintiff/applicant herein.

The deponent averred that the 1st defendant is the spiritual head of AIPCA Church in Kenya, with the top most organs being the Central Board. He further deposed that the church is governed by the Constitution, which was amended and signed on the 20th December 2010.

He also averred that as per the Church’s Constitution, the administrative functions of the Church are supposed to be headed by the National Chairman and as spread out to the Diocesan Committees. It was his contention that the 1st defendant was appointed in June 2013, and in the short term he has reigned, he has failed to steer the church in the right direction, as he wants to play both roles of administrative and spiritual head.

He also averred that on the 27thof February 2014, without consulting, neither the Central Board nor the Bishop’s Synod, the 1st Defendant suspended the twenty seven member committee of the Nairobi Archdiocese, totally paralysing the administrative operations of the Church, which serves as the Headquarters.

Further that through the same letter, the 1st Defendant purported to appoints fifteen Commissioners who constituted a Commission to run the affairs of the Archdiocese, which is totally ultravires, malafides, and against the AIPCA Constitution.

It was his further contention that on the 29th of March 2014, 1st Defendant purportedly proceeded to appoint or issue a new list of Commissioners that he had appointed in a letter, the 1st Defendant read to the churches.

He also contended that all properties are in the name of the plaintiff, and the 1st Defendant in May 2014, led a faction that broke into the Church offices at Bahati Headquarters, and took away all the title deeds for the Church properties, together with the official seal of the Church trustees.

It was his further contention that as the secretary of the of the Board of trustees, he was the custodian of the list of all Church properties and that the said list was not conclusive as some churches had not submitted title documents belonging to the Church, while other parcels of land did not have title deeds but have some form of papers of ownership which the 1st defendant took away.

The deponent alleged that the 1st defendant is not even a trustee of the Church and has tried to interfere with the plaintiff by trying to register some trustees or register himself but has not succeeded. He further alleged that the 1st defendant together with his cronies have now engaged in acts of wastage, misuse, misappropriation and illegal erection of structures on the church properties.

The applicant further averred that in LR No. NAIROBI/ BLOCK126/368, located in Kamulu which is designated for building the theological college, the 1st defendant has initiated the construction of a Church for his splinter group. He averred that this is the property of the church and the 1st defendant should not be allowed to utilise it as he pleases. It was his further contention that the drawing plans for the college had been approved with construction set to start at any time, as the foundation had already been set.

He also contended that the 1st defendant cannot start a small church next to a major project while the AIPCA is a few meters from the place, being LR No NRB BLOCK 126/364. It was his further contention that due to the 1st defendant’s hard stance, eight suits are now pending for determination before Courts ranging from defamation to challenging his appointment, contempt together with Criminal proceedings for malicious damage to property.

He also averred that on the 30th July 2014, the National Chairman wrote to the 2nd defendant warning that any dealings on the plaintiff’s properties and the Church’s properties should not be entertained but the 2nd Defendant did not give a commitment to fulfil the same. Consequently he averred that there was now imminent danger that the 1st defendant together with his cronies might interfere with the church properties by selling or charging the same, and there was urgent need to secure and preserve all properties of the church pending resolution of the disputes between the parties.

He further stated that as noted in CMCC2317of 2014 and reinforced by criminal proceedings at Kibera CR 4747 of 2013 it is the 1st defendant who is funding promoting and protecting splinter groups and criminal gangs to disorganise church operations, including damaging properties in order to force members to follow his whims. He also alleged that the 1st defendant has refused any form of mediation and also frustrated the same by refusing to form the tribunal which would resolve the wrangles and unless the court intervenes no amicable solution would be reached.

In the supplementary affidavit, the deponent refuted that the Chairman and him were excommunicated, as the same is illegal, unlawful and improper in the absence of a properly Constituted Central Board to pass such resolution.

It was his contention that none of the trustees has ever resigned or given up their trusteeship and reiterated that the issue of him together with the Chairman Paul Watoro Gichu is among matters raised for determination in NRB HCCC 99, HCCC 41 and HCCC 127 of 2014.

He therefore alleged that the intentions of the 1st defendant together with his agents to force and effect illegal changes at the Registrar’s Office have clearly hit a wall, and that if there had been any elections as alleged the registrar would have registered them.

He further reiterated that all illegal attempts by the 1st defendants to dislodge them from office have clearly failed and the letter dated 24th September, 2014 to Court is just a ploy to mislead the Court. He further contended that he is aware that the Plaintiff in CMCC 3069 of 2014 has since appealed the Ruling of the Lower Court which purported to allow the illegal meetings of the self-appointed persons.

It was his contention that the last General meeting was on 30th January 2014,of which several resolutions were passed and that from then there has been no General meeting of the AIPCA Church, hence any purported changes to the Officials of the church is a nullity.

The application was opposed by Arch Bishop Amos Mathenge Kabuthu1st Defendant by way of Replying Affidavit sworn on the 17th October 2014.

He averred that the entire suit is defective and should be dismissed with costs as it has not been filed by the registered trustees of the African Independent Pentecostal Church of Africa [AIPCA] but by Paul Watoro Gichuand Simon Peter Mwangi, who are impostors purporting to be trustees of the church.

He also averred that they were indeed trustees of the church until 12th May 2014 when they were removed and ex-communicated from the membership of the Church, by the National Committee also known as the Central Board on disciplinary grounds for acting contrary to the canons of the law.

It was his contention that on the 23rd May 2014, the remaining trustee Bertha Nyambura Mwangi resigned from her post through an advert in the Daily Nation Newspaper on that date.

Further that Paul Watoro Githu was removed from being the National Chairman of the Church upon excommunication and replaced by Samuel Mburu Kimani , in an acting capacity. He was a trustee by virtue of being the Chairman and the same was automatically lost when he seized being one.

The 1st Respondent stated that the membership of the executive committee were;-

a.Samuel Mburu Kimani,

b.Japheth Gikunda,

c.Stanley Mburu Mwangi,

e.Bernard Maina Mwangi,

e.Timothy Gitonga Gachoya,

f.Janet Wanjiru Mwaura

g.Stanley Muthomi.

According to him upon the removal of Paul Watoro Gichu and Simon Peter Mwangi (the applicant herein) from being trustees of the church, others were appointed in their place instead. It was his contention that he has talked to all the bonafide trustees and none of them ever gave instructions for the filing of this suit.

He contended that the changes of membership in the Executive Board were lodged for registration with the Registrar of Societies through a letter dated June 2014, together with the Notification for Change of Officers and Annual Returns.

He also contended that ever since the establishment of the church the Archbishop has always been a trustee which is a tradition of the Church since he is the overall and spiritual head of the Church.

It was his case that all allegations made out against him are malicious and diversionary, as all the decisions he is accused of making have been made by the Central Board of the Church, which is the organ mandated to do so and that it has not done anything contrary to its Constitution.

He averred that the applicants have concealed from this court, the fact that they were expelled and excommunicated from the church and they thereafter rushed to the Magistrate’s Court seeking to restrain the Central Board and himself from performing their respective functions.

He also contended that he is not in custody of any title deeds referred to, but they are in good and legitimate custody of the bonafide trustees of the Church of which the Central Board has already lodged for registration of the names of the current trustees with the Minister of Lands who is the Registrar. Accordingly, the applicants came to court, only when they failed to convince the Minister to stop the registration of the new trustees which is underway.

He denied that he is constructing any Church as alleged by the applicant in Kamulu but alleged that ground has been broken for the construction of the Theological School, with the authority of the Central Board.

He therefore contended that the applicants have not alleged anywhere that he is in breach or exceeded his powers as the Arch bishop of the Church under the Church’s Constitution. Further that most of the suits pending as claimed by the applicant have been filed by the applicants as a fight back against their expulsion and ex communication.

In the Notice of Motion dated 27th February 2015, the intended interested parties have sought for these orders:-

1. The applicantsM/s Stanley Mburu Mwangi,Timothy Gitonga Gachaya Samuel Mburu kimani.Eliud Njua Juma,John Maina and Philip Kubaibe enjoined in this suit as interested parties.

2. The cost of the application be provided for.

The application was supported by the grounds stated on the face of the applicant together with the supporting affidavit of Stanley Mburu Mwangi sworn on the 2nd March 2015.

The deponent averred that since the month of May 2014 , they have been the bonafide trustees of the African Independent Pentecostal Church of Africa ( AIPCA) and the same was done in accordance with the Constitution of the Church. Further that the application for the registration of them has been lodged with the relevant ministry (Minister of lands).

He also contended that Paul Watoro Gichu and Simon Peter Mwangi, who have purported to bring this suit on behalf of the trustees ceased being members of the church on 12th May 2014, when they were excommunicated and hence therefore also ceased being a members of the Central Board and Trustees.

He alleged that as such they had no authority to institute this suit on behalf of the registered trustees of the church and are hence mere imposters.

He further contended that they are the custodians of the Church land and properties including titles and properties and are supervising the developments taking place on the property and not the 1st defendant as alleged by the applicants in the Notice of Motion dated 12th September 2014.

He alleged that they naturally therefore have an interest in this suit as they will be affected by its outcome, as it has a bearing on the title and authority that they are entitled to exercise under the Church’s Constitution. It was their case therefore that they be enjoined in the suit as interested parties and they be allowed to participate in the application filed herein by the plaintiffs on 12th September 2014 , as the parties will not suffer any prejudice.

The Court directed that the two Notices of Motion be canvassed together by way of written submissions. The intended interested parties submitted that they were in compliance with the Church’s Constitution and as appointed trustees of the Church and the application for their registration has been lodged with the Principal Registrar of documents. Subsequently the plaintiffs were removed and it’s on that basis that they seek to be enjoined in the proceedings.

The Plaintiff in opposition to the Notice of Motion dated 27th February 2015, submitted that the intended interested parties application is a non-starter and should stay out of the way to pave way for the determination of the application dated 12th September 2014.

It was their further submissions that when the intended interested parties filed their application, things took a strange twist that court file disappeared for several days and after protesting at the Deputy Registrar’s Office, the file resurfaced. Further that the interim orders kept on lapsing and they kept on reinstating them. It was their submissions that as they were struggling in Court, the 1st defendants and the interested parties were trying to change the trustees of the Church.

Accordingly through an application dated 24th September 2015, they sought an order barring the change of trustees with the advocate for the 1st defendant giving an undertaking in court that he understood what the interim orders meant.

It was their submission that no changes were ever effected and the trustees remain the same. They further submitted that Timothy Gachoya is deceased and the 1st defendant has produced no document from the registrar to show that the intended applicants are trustees of the Church.

They further relied on their supplementary affidavit where they contended that the full list of the last properly elected officials has been produced and that there is no document from the registrar to show that Paul Gichu has been removed from being the Chairman of the Church. It was their further submissions that trusteeship is not self-granted as it is a legal appointment which if correctly done must be registered at the Lands office.

They also submitted that the applicants are not trustees of the church at all and have not demonstrated sufficient interest in the suit to be allowed to join. Furthermore they have not even attached membership cards; or anything to show that they are officials of the church. They relied on the case of NRB HCCC 5116 Of 1992(0S) Free Pentescostal Fellowship In Kenya Vs Kenya Commercial Bank Limited where it was stated that the church can only sue through its registered officials.

The 1st Defendant filed submissions in opposition to the Notice of Motion dated 12th September 2014. It was his submission that the applicants were no longer members of the church as they had been excommunicated and thus have no capacity to bring this suit on behalf of the church.

Further that the 1st Defendant has shown who are the bonafide trustees of the church and have lodged their application which is now pending registration.

It was his submission that the applicants have not met the conditions for the grant of an injunction. It was submitted that applicants have no prima facie case with the probability of success neither have they demonstrated how they will individually suffer leave alone irreparable damage if the church would continue undertaking construction of the local churches around the country which is what they seek to stop. He further submitted that the Churches properties together with the title deeds are in the safe custody of the bonafide trustees as empowered by the Constitution of the Church.

It was their submission that the injunctive orders granted herein have been prejudicial to the affairs of the church and were maliciously sought to cripple the affairs of the Church.

The Plaintiff had filed its submissions in support of the Notice of Motion dated 12th September 2014, on 2nd February 2015, and alleged that it has met the threshold for grant of injunctive orders as stipulated in the case of Giella Vs Cassman Brown 1983(EA 358 .The Plaintiff relied on various case law. The particularly quoted the English case of Films Rovers Internationals ( 1986) 3 ALL ER 722 at page 780-781where the court held that;-

“ A fundamental principle is that the court should take whichever cause appears to carry the lower risk of injustice if it should turn out to have been wrong”.

The Court has now carefully considered the two Notices of Motion and the annextures thereto. The Court has also considered the written submissions and makes the following findings:-

I propose to deal first with the Notice of Motion dated 27th February 2015, for joinder of interested parties.

This application is anchored under Order 1 Rule 10(2) and 25 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The applicants in their application have alleged that since May 2014, they have been the bonafide trustees of the AIPCA Church and that they have already lodged their application for registration with the Ministry of lands. They further alleged that as the custodians of the church property including land and titles to land, they have an interest in the suit herein and thus sought to be enjoined as interested parties herein. They also averred that the Plaintiff herein will not suffer any prejudice if the application is allowed.

However, the Plaintiff has opposed the application and termed it as an abuse of the Court process and that it lacks merit and is brought in bad faith.

Order 1 Rule 10(2) of the Civil Procedure Rules provides that;-

“ the Court may at any stage of the proceedings either upon or without the application of either party and on such term as may appear to the court to be just …that the name of any party improperly joined whether as a plaintiff or defendant be struck out and that the names of any person who ought to have been joined whether as a Plaintiff or Defendant or whose presence before the court may be necessary in order toenable the court to effectuallyand completely to adjudicate upon and settle all questions involved the suit be added”.

The above provisions therefore gives the court discretion to order that a party be joined to a suit so long as the presence of the said party is necessary in order for the court to effectually and completely adjudicate upon and settle all questions involved in the suit.

There is no doubt that the Plaintiffs herein who have alleged that they are bonafide Trustees of the AIPCA have sued the 1st Defendant who is the Arch-Bishop of the said AIPCA and alleged that he is misusing the Church property and should be restrained .However, the 1st Defendant has averred that the named persons who have brought this suit are not bonafide trustees of AIPCA and that they were removed from being trustees on 12th May 2014. The intended interested parties alleged that they are new bonafide trustees. The issue herein for determination is who are the real or bonafide Trustees of the Church (AIPCA). The interested parties having been named by 1st Defendant as the bonafide trustees of AIPCA are indeed necessary parties herein and they have an interest in outcome of this matter. The Court finds that though the Plaintiff has opposed the instant Notice of Motion, the applicants herein are necessary and their presence in the suit will assist the court to effectively and completely adjudicate this matter and settle all the questions involved. Further Section 3A of the Civil Procedure Act donates inherent power to this Court to make such orders that are necessary for ends of justice to be met. The court finds that joining the applicants herein is such necessary order.

Consequently, the Court allows the applicants Notice of Motion dated 27th February 2015, and directs that the applicants therein be enjoined as Defendants herein. The Plaintiff to amend its pleadings accordingly to reflect the enjoined Defendants.

On the second Notice of Motion dated 12th September 2014, the Plaintiff/applicant has sought for injunctive reliefs which are equitable remedies granted at the discretion of the court. See the case of CMC Motors Group Ltd and Another vs. Evans Kangeche Boro, Civil Appeal NO. 295 of 2007,where the court held that:

“In granting the injunctory reliefs, the superior court was exercising equitable jurisdiction which is discretionary and the court of Appeal can only interfere with the judicial discretion of the learned Judge, if it is satisfied that the learned Judge did not exercise is discretion Judicially…..”

However, the discretion exercised by the Court must be exercised judicially.

The applicant having sought for injunctive relief must satisfy the principles laid down for grant of such orders. These principles were enumerated in the case of Giella Vs Casman Brown & Co.Ltd 1973 EA 358 and later repeated in various judicial pronouncements. In the case of

East Africa Development Vs Hyudai Motors Kenya Ltd Civil Appeal No. 194 of 2004 (2004) LLR 6121 ;the Court held that:-

“What was before the learned Judge was an application for equitable remedy of injunction and the conditions are; first an applicant must show a prima facie case with probability of success; secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience”.

The applicant herein first needed to establish that it has a prima facie case with probability of success. In the case of Mrao Ltd Vs First American Bank of Kenya and 2 Others (2003) KLR 125, prima facie case was described as:-

“A Prima facie case in a civil application includes but not confined to a genuine and arguable case. It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.”

From the above description, it is evident that the evidence presented must show an infringement of a right and the probability of success of the applicants’ case at the trials.

Have the applicants herein established that they have a prima facie case with probability of success?.

At the heart of this matter is the Plaintiff’s various suit properties. The suit herein is brought by the Registered Trustees of African Independent Pentecostal Church of Africa ( AIPCA) but anchored by the Affidavit of Simon Peter Mwangi who alleged that he is the one of the Plaintiffs trustees . The said Simon Peter Mwangi was allegedly given authority to bring the suit by the Board of Trustees and which authority is signed by one Paul W Gichu, the alleged National Chairman. However , the 1st Defendant has alleged that the suit herein is not filed by the Registered Trustees of the AIPCA but by imposters Paul Watoro Gichu and Simon Peter Mwangi ,who have no capacity to sue on the behalf of AIPCA Church, as they were removed from acting as such on 12th May 2014, and they were subsequently excommunicated from membership of the Church by the National Committee of the Church also known as the Central Board on displinary grounds and also for acting contrary to the canons of the Church.

It is evident that the AIPCA is governed by its constitution which was amended in December 2010. In the said Constitution, the national Office Beacons are given and head of this Central Board is the Arch Bishop, who is the head of all spiritual matter and a symbol of Church Unit. The Central Board consist of eight members. In chapter six of the said Constitution, it provides for Board of Trustees which shall consist of the Arch Bishop, National Chairman, Secretary General and National Treasurer of the Central Board and any other three members who shall be appointed at a General meeting.

The trustees are the custodians of all the Church land, moveble and immovable properties and other assets. That being the case, the properties herein for the AIPCA are in custody of the trustees of the Church herein.

The deponent of the affidavit in support of this Application one Simon Peter Mwangi has alleged that together with Paul Watoro Gichu, they are bonafide trustees of AIPCA and have brought this suit on behalf of the trustees of AIPCA .However, the 1st Defendant has disputed that and averred that the two were excommunicated from the church and removed from being the trustees on 12th May 2014 as evident from AMK(1) a) and AMK (1) (b).

It is therefore evident that there are leadership wrangles in AIPCA herein. There is one group led by the Deponent in this application and another group led by the 1st defendant. It is also evident that there are various suit filed in court contesting the removal of the deponent as trustees of the church herein ( AIPCA) .

For the any one to purport to be a trustee of the AIPCA herein and to have capacity to sue on behalf of the said church her or she must be a bonafide trustee of the said church. It is evident that the 1st defendant has produced documents to show that Simon Peter Mwangi and Paul Watoro Gichu who have brought this suit as some of the trustees of AIPCA were removed from being such trustees and ex-communicated from the Church vide a letter dated 12th May 2014.

However, those allegations have been disputed by the said Simon Peter Mwangi and Paul W Gichuherein. Those are issues to be determined through calling of evidence but not at this juncture. I have noted that there are various suits filed in court by the parties herein and one of the suit therein is challenging the appointment of the new trustees named by the 1st defendant in his Replying Affidavit and now enjoined as defendants herein.

At this juncture, this Court cannot hold and find with certainty that Simon Peter Mwangi and Paul Watoro Gichu are the bonafide trustees of AIPCA and have capacity to bring this suit on behalf of AIPCA. Having found that it is not certain whether the Deponent herein and Paul Watoro Gichu are bonafide trustees of AIPCA, the Court finds that it is uncertain whether they have capacity to sue on behalf of AIPCA. Due to the above uncertainty, the Court finds that the applicants have not established that they have a prima facies case with probability of success.

Having found that it is uncertain whether the deponent herein and one Paul Watoro Gichu have capacity to bring this suit, the Court finds that it would be difficult to ascertain whether they will suffer any loss which cannot be compensated by an award of damages.

On the third limb of when the court is in doubt to decide on the balance of convenience, the court finds that the core dispute herein is leadership wrangles. There is no doubt that the properties mentioned in the suit herein all belong to AIPCA Church in different parts of this country. All the properties of AIPCA are entrusted under the custody of the trustees, The number of trustees are given in chapter six of the constitution .The 1st Defendant has alleged that new trustees are in the office.

The dispute herein is between the alleged trustees and not members of the Church. None of the key members of the church have complained that there is any danger of disposal of their properties by the alleged trustees who are in the office. It is evident that temporary injunction are granted where there is evidence of immediate danger to property. There is no such evidence herein. See the case of Noor Mohammed Jan Mohammed Vs Kassamali VN ( 1953) EA8.

“To justify temporary injunction, there must be evidence of immediate danger to property by sale or any other dispotion. The purpose of Temporary Injunction is to preserve the Status Quo”.

The Court finds that in this matter, since there is no evidence of immediate danger to property, the court finds that the balance of convenience tilts in favour of maintaining the status quo . Thestatus quois what was there before the suit herein was filed.

Consequently, the Court finds that the parties herein should first settle their leadership wrangles and should not seek restraining orders over any property of AIPCA in an attempt to justify that any of the party herein is the bonafide trustee as that is an issue to be determined by the trial court. For now, the court finds that the balance of convenience tilts in favour of maintaining status quo that prevailed before the suit was filed and for avoidance of doubts, there were no restraining orders before the suit was filed.

Consequently, the Court vacates the restraining orders in force and finds that Notice of Motion dated 12th September 2014, is not merited. The said Notice of Motion is dismissed entirely with costs being in the cause. The parties to set the main suit down for hearing expeditiously so that the underlying issues can be resolved with finality.

It is so ordered.

Dated, Signed and Delivered this 29thof April 2016.

L.GACHERU

JUDGE

In the presence of

None attendance for the Plaintiff/Applicant though notified.

None attendance for the 1st & 2nd Defendants/Respondents.

Mr Musyimi holding brief for Kinyua for interested parties.

Court Clerk : Hilda

L.GACHERU

JUDGE

Court:

Ruling read in open Court in the presence of Mr Musyimi holding brief for Mr Kinyua for interested party and absence of Mr Kirimi for the Plaintiff though notified and absence of Mr Ngata Kamau for the 1st Defendant and representative for the Attorney General for the 2nd Defendant. Notice of delivery of Ruling to be issued by the Advocate present.

L.GACHERU

JUDGE