https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11539

Timona & 2 others v Mwangi & 3 others (Civil Case E063 of 2026) [2026] KEHC 11539 (KLR) (Civ) (23 July 2026) (Ruling) Neutral citation: [2026] KEHC 11539 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E063 of 2026 KL Kandet, J July 23, 2026 Between Bishop Joseph Timona 1st Applicant Geoffrey Waweru Gichuki 2nd Applicant Bishop Barnabas Kinyua Mpekethi 3rd Applicant and Fredrick Ngugi Mwangi 1st Respondent Peter Chacha Mosoba 2nd Respondent Simon Mwangi 3rd Respondent Seline Ronoh 4th Respondent Ruling 1.The Plaintiffs/Applicants instituted proceedings dated 03.03.2026 seeking declaratory, injunctive and consequential reliefs arising from the alleged unlawful removal of the 2nd Plaintiff as the duly elected Secretary General of the Association of Pentecostal and Evangelical Clergy of Kenya (APECK), and the subsequent installation of the 2nd Defendant as Secretary General. 2.The Plaintiffs contend that the purported removal was undertaken contrary to the Constitution of the Association, the Societies Act and the Constitution of Kenya, and consequently seek declarations that all actions undertaken pursuant thereto are null and void. 3.Following service of the pleadings, the 1st–4th Defendants/Respondents filed a Notice of Preliminary Objection dated 11.03.2026 contending that the High Court lacks jurisdiction by virtue of Section 18(1) of the Societies Act, arguing that disputes concerning officials of registered societies fall within the exclusive jurisdiction of the Registrar of Societies in the first instance. 4.The Defendants argue that the Plaintiffs failed to invoke and exhaust the dispute resolution process contemplated under Section 18 of the Societies Act before approaching the Court. 5.The Defendants further assert that the Registrar had neither rendered a decision nor been afforded sufficient opportunity to address the dispute, and therefore judicial intervention was prematurely invoked.1.The Plaintiffs oppose the objection, maintaining that the dispute transcends a mere internal leadership contest and raises constitutional and public law issues concerning legality, procedural fairness and ultra vires actions, matters properly falling within the supervisory jurisdiction of the High Court.2.They contend that the dispute raises questions concerning the legality of administrative action, observance of constitutional rights, interpretation of the Society's Constitution, procedural fairness and the exercise of statutory power by the Registrar of Societies.3.The Plaintiffs further argue that the objection is itself predicated upon disputed factual matters, including the extent of engagement with the Registrar and the authenticity and legal effect of certain correspondence relied upon by the parties. 9.Issues for determination:i.Whether the Notice of Preliminary Objection dated 11.03.2026 satisfies the legal threshold of a preliminary objection.ii.Whether Section 18 of the Societies Act ousts the jurisdiction of the High Court.iii.Whether the doctrine of exhaustion applies.iv.Whether the High Court ought to entertain the suit notwithstanding Section 18 of the Societies Act. Analysis and Recommendation 10.On the issue of whether the Notice of Preliminary Objection dated 11.03. 2026 satisfies the legal threshold of a preliminary objection, the court is guided by the principles set out in case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, and as endorsed by the Supreme Court of Kenya in the case of Hassan Ali Joho & Another v. Suleiman Said Shahbal & 2 Others, Petition No. 10 of 2013, [2014] eKLR [paragraph 31] where it was stated as follows: “To restate the relevant principle from the precedent-setting case, Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors (1969) EA 696: ‘a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration … a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion’.” 11.From the foregoing, it is clear that a preliminary objection should capable of disposing of a suit without the court receiving any evidence. Once the court is invited to investigate disputed facts, interpret contested documents, or make factual findings, or exercise judicial discretion then the issue would lose the character of preliminary objection. 12.The Supreme Court of Kenya reaffirmed this position in the case of Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR, observing that a preliminary objection must be founded upon a pure question of law discernible from the pleadings. 13.In the instant case, the Defendants contend that Section 18 of the Societies Act deprives this Court of jurisdiction because the Plaintiffs failed to first invoke the Registrar's dispute resolution mechanism in compliance with the doctrine of exhaustion. 14.However, the Plaintiffs' pleadings disclose several factual controversies that bear directly on that contention, such as whether the Registrar of Societies was formally notified of the dispute through the Plaintiffs' correspondence, whether the dispute concerns merely the identity of office bearers or extends to allegations of procedural illegality, breach of the Society's Constitution and violation of constitutional rights; and whether the internal actions complained of complied with the Association's Constitution. 15.These questions go to the substance of the dispute and cannot be resolved without examining the documentary evidence and, if necessary, hearing oral testimony. 16.It follows therefore that, although jurisdiction is ordinarily based on a pure question of law, the particular objection before the Court is predicated upon factual assumptions that are themselves disputed. In those circumstances, the objection falls outside the scope contemplated in Mukisa Biscuit and cannot properly dispose of the suit at the preliminary stage. 17.On whether Section 18 of the Societies Act ousts the jurisdiction of the High Court, the basis of the Defendants' Preliminary Objection is that the Plaintiffs ought not to have approached the High Court before exhausting the procedure contemplated under Section 18(1) of the Societies Act. 18.The Defendants contend that disputes relating to officials of registered societies fall exclusively within the original jurisdiction of the Registrar of Societies and that this Court consequently lacks jurisdiction to entertain the present proceedings. 19.The Plaintiffs take the contrary view. They submit that Section 18 neither establishes an exclusive dispute resolution mechanism nor expressly ousts the jurisdiction of the High Court. 20.They further contend that the dispute before the Court transcends a mere contest over office bearers and raises substantial questions concerning legality, procedural fairness, constitutional compliance and interpretation of the Society's Constitution, all of which properly invoke the jurisdiction of the High Court. 21.Section 18(1) of the Societies Act provides:“If the Registrar is of the opinion that a dispute has occurred among the members or officers of a registered society as a result of which the Registrar is not satisfied as to the identity of the persons who have been properly constituted as officers of the society, the Registrar may, by order in writing, require the society to produce to him, within one month of the service of the order, evidence of the settlement of the dispute and of the proper appointment of the lawful officers or of the institution of proceedings for the settlement of such dispute." 22.The Registrar's intervention is triggered only if the Registrar is of the opinion that a dispute exists and the formation of that opinion is discretionary and fact-dependent. The provision does not impose a mandatory obligation upon the Registrar to determine every dispute among officials. 23.Nowhere does Section 18 contain an express ouster clause excluding the jurisdiction of the High Court. 24.On whether the doctrine of exhaustion applies, in Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, the Court of Appeal underscored that statutory remedies should ordinarily be exhausted before resort is made to the courts. 25.The Court, however, did not hold that the existence of such remedies automatically deprives the High Court of jurisdiction. Rather, the doctrine is rooted in judicial policy and is subject to recognized exceptions. 26.In Albert Chaurembo Mumbo & 7 Others v Maurice Munyao & 148 Others; SC Petition No. 3 of 2016 [2019] eKLR, the Supreme Court stated:“Where there exists an alternative method of dispute resolution established by legislation, the Courts must exercise restraint in exercising their jurisdiction conferred by the Constitution and must give deference to the dispute resolution bodies established by statute." 27.The Supreme Court did not hold that courts automatically lose jurisdiction whenever an administrative mechanism exists. Rather, the Court recognized the principle of institutional competence—that specialized statutory bodies should ordinarily determine matters falling within their expertise before judicial intervention. 28.The distinction between a statutory remedy and an exclusive jurisdictional bar is crucial. A statutory mechanism encourages parties to utilize specialized administrative expertise; it does not necessarily extinguish the constitutional mandate of the High Court. 29.The Defendants submit that the Plaintiffs approached this Court prematurely because they had not first exhausted the dispute resolution mechanism contemplated under Section 18 of the Societies Act. They argue that the Registrar of Societies had neither completed nor formally commenced the statutory process and that the Court should therefore decline jurisdiction. 30.The Plaintiffs, however, contend that they had already engaged the Registrar through correspondence concerning the dispute and that the impugned actions continued notwithstanding those engagements. They further assert that the threatened Annual General Meeting and elections would fundamentally alter the governance of the Association before the legality of the contested decisions could be determined, thereby occasioning irreparable prejudice. 31.This Court issued interim orders restraining the holding of the scheduled Annual General Meeting and elections pending further directions, indicating that the Court considered the risk of imminent prejudice sufficiently weighty to warrant preservation of the status quo. 32.The dispute disclosed by the pleadings is not confined to the identity of office bearers. The allegations involves constitutional norms of legality, procedural fairness and access to justice. These cannot be characterized as mere administrative disagreements over office holders. 33.These are matters that extend beyond the administrative competence contemplated under Section 18 of the Societies Act. The Registrar's role under that provision is directed principally at resolving uncertainty regarding the identity of lawful officials. It does not expressly empower the Registrar to determine constitutional questions, pronounce upon the legality of internal governance decisions, or grant the declaratory and injunctive reliefs sought in these proceedings. 34.I am persuaded that the doctrine of exhaustion does not sufficiently operate as a bar to the institution of the present proceedings. 35.On whether the High Court ought to entertain the suit notwithstanding Section 18 of the Societies Act. 36.The Supreme Court in Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [2012] eKLR authoritatively stated that a court's jurisdiction flows from the Constitution or legislation. Article 165(3)(a) provides that the High Court shall have unlimited original jurisdiction. 37.The Defendants' construction of Section 18 effectively transforms the Registrar into a tribunal of exclusive jurisdiction. Yet the Act neither establishes adjudicative procedures comparable to judicial proceedings nor provides safeguards relating to evidence, cross-examination, discovery, or the determination of constitutional questions. 38.The Plaintiffs' interpretation accords with the constitutional structure. It recognizes the Registrar's important statutory role while preserving the supervisory and original jurisdiction vested in the High Court by Article 165. 39.Having considered the pleadings, affidavits, annexures, rival submissions, constitutional provisions, statutory framework and the binding authorities cited, it is my view that the High court’s jurisdiction was properly invoked since as stated elsewhere in this ruling, the dispute is not confined to the identification of lawful officials of a registered society. Rather, it encompasses allegations of unlawful removal from office, breach of the Society's Constitution, ultra vires conduct, denial of procedural fairness, and threatened infringement of legal rights. These matters fall squarely within the constitutional and supervisory jurisdiction of the High Court. 40.While Section 18 of the Societies Act establishes an important administrative mechanism for addressing disputes concerning society officials, it neither creates an exclusive forum nor excludes the constitutional jurisdiction conferred to this Court by Article 165 of the Constitution. Disposition 41.For the foregoing reasons, the Respondent’s preliminary objection dated 11th March 2026 is without merit and the same is hereby dismissed with no order as to costs. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 23RD JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn the presence of:Ms Wangui hb for Kiragu for the PlaintiffMwongela for the 1st-4th DefendantMkamba for the 5th RespondentCourt Assistant: Aggrey