[2023] KEHC 23147 (KLR)

Wamburi v Israel Assemblies of God & 5 others; Registrar of Societies (Interested Party) (Petition 16 of 2022) [2023] KEHC 23147 (KLR) (5 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23147 (KLR)

Republic of Kenya

In the High Court at Kiambu

Petition 16 of 2022

PM Mulwa, J

October 5, 2023

IN THE MATTER OF ARTICLE 22(1) AND 23 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF CONTRAVENTION OF ARTICLE 10,19,20,21,22,27,47 AND 50 OF THE CONSTITUTION OF KENYA AND IN THE MATTER OF SECTIONS 2, 3(1), 4, 4(2), 4(3), 4(4), 4(5), 4(6) AND 7(1) OF THE FAIR ADMINISTRATIVE ACT, 2015 AND IN THE MATTER OF THE ALLEGED CONTRAVENTION OF SECTIONS 3(g),4(a)(i), 4(b), 5(a), 6(c) AND 8 OF THE CONSTITUTION OF ISRAEL ASSEMBLIES OF GOD AND IN THE MATTER OF SOCIETIES ACT CAP 108 AND IN THE MATTER OF THE CONSTITUTION OF KENYA (PROTECTION OF RIGHTS AND FUNDAMENTAL FREEDOMS) PRACTICE AND PROCEDURE RULES, 2013

Between

Archbishop Elijah Benson Wamburi

Petitioner

and

Israel Assemblies Of God

1st Respondent

Reverend Waithaka Luka

2nd Respondent

Pastor Cyrus Waweru

3rd Respondent

Evangelist Peter Maina

4th Respondent

Bishop Ezekiel Mugui Mwangi

5th Respondent

Bishop Zachary Nganga Kabugu

6th Respondent

and

The Registrar Of Societies

Interested Party

Judgment

1. The petitioner has approached this court to seek redress with respect to what he terms as a violation of his constitutional rights by the respondents herein. He stated that he has brought this petition in his capacity as a member and ordained Archbishop, head leader of Israel Assemblies of God (herein referred to as the Church).

2. The 1st respondent is a society within the meaning of section 2 of the Societies Act cap 108 and duly registered on 8th July 1993.

3. The 2nd to 6th respondents are members of the church, some being office bearers in the church.

4. The Interested Party is an office established under Section 3 of the Societies Act and charged with the responsibility of regulating the activities of the 1st respondent

Background 5. According to the petition dated June 9, 2022, the facts giving rise to this matter is that the General Assembly church council elected the petitioner to be its national chairman for the smooth administration of the church and bestowed him with the responsibilities of presiding over all the General Assembly Church council. On March 11, 2022, in utter violation of the 1st respondent’s constitution, the 2nd to 6th respondents convened a meeting held at Kiamunyeki Local Church, convened without notice and irregular resolutions were passed to wit the petitioner was to attend a disciplinary meeting for allegations of gross misconduct, the petitioner was not allowed to transact on behalf of the church and the petitioner was suspended from the church.

6. A subsequent meeting was also held at Njoro Local church and illegal resolutions passed, the petitioner was not issued with a notice to attend the two meetings, he was never given a chance to be heard and was condemned unheard in violation of the right to fair hearing.

7. The petitioner alleges violation of the national values and principle as enshrined in article 10 (2) of the Constitution in declining the petitioner to attend the 1st respondent’s meeting. He alleged violation of the principle of equality, accountability and transparency. He avers discrimination under article 27 of the Constitution. That his right to access information under article 35 was violated, as well as the violation of the petitioner’s right to fair administrative action and the right to fair hearing.

8. The petitioner urges the court to allow the Petition and grant the following orders:i.A declaration that the respondents breached the national values and principles of accountability and transparency in article 20 of the Constitution for conducting two separate meetings held on March 11, 2022 and May 17, 2022. ii.A declaration the respondents have violated the petitioner’s right to equal benefit and equal protection of the law under article 27 of the Constitution through preferential treatment of the members of the Ranch and acting as though the petitioner’s rights are subservient to that of squatters.iii.A declaration that the respondent’s have violated the petitioner’s right to administrative action that is efficient, lawful, reasonable and procedurally fair, for arbitrarily denying the petitioner the right to be heard before the committee.iv.A declaration that the respondents violated the petitioner’s right under article 50(1) of the Constitution to have the dispute herein decided in fair and public hearing before the court or if appropriate, another independent tribunal or body.v.A declaration that the meetings held on March 11, 2022 and May 17, 2022 by the 2nd – 5th respondent leading to the removal from office the petitioner, his removal from the church register and further ex-communication contravened section 8 of the 1st respondent constitution are illegal and subsequently all the resolutions passed in the said communicate to the register of societies and are therefore null and void.vi.An order revoking any changes made by the Registrar of societies on the basis of the resolutions passed in the illegal meetings.vii.An order directing that the petitioner be reinstated back to the office of the bishop to the office of the National Chairman and his name be reinstated in the register at the registrar of Societies as member of the 1st respondent church.viii.Damages be awarded to the petitioner for discrimination and unfair dismissal or removal from office.ix.The costs of the petitionx.Any other reliefs the court may deem fit.

9. The Petition is supported by the annexed affidavit of Archbishop Elijah Benson Wamburi sworn on June 9, 2022, he mirrored the grounds of the petition.

10. The petition is opposed by the 5th and 6th respondent’s Replying affidavit sworn on July 14, 2022, and on February 22, 2023. The 5th respondent avers the petitioner previously served as Chairman of the General Assembly church Council before he was removed, he avers that the petitioner has no mandate to ordain bishops of the 1st respondent. He states that by a ceremony held on June 12, 2022 at Ruiru Local Church the 2nd, 3rd and 4th respondent were ordained, the petitioner has suffered no prejudice following the ordination of the 2nd, 3rd and 4th respondents.

11. The 6th respondent avers that the Constitution of the 1st respondent only allows for one Archbishop of the church, the previous Archbishop Shadrack Kinyua alias Stephen Kinya Kuria died on September 5, 2020, and the 5th respondent assumed the leadership of the church as the Archbishop pursuant to article 4(a) of the church’s constitution. He denied that the meetings held were irregular, as notices were sent out to all members of the 1st respondent including the petitioner. He avers the petitioner was in great violation of the Constitution of the 1st respondent, that he ordained 5 members of the church without having any mandate. He stated that the petitioner was invited to attend the disciplinary meeting which he attended but left before the same was concluded. The committee resolved that the petitioner was guilty of gross misconduct and violation of the church’s constitution and consequently excommunicated from the church with effect from May 17, 2022. He averred the petitioner was accorded a fair hearing and a chance to defend himself. And further that the petitioner has moved the court with unclean hands and pleaded with the court to dismiss the application.

12. The 5th respondent’s appointment of Mr. Waiganjo as counsel necessitated the petitioner to file a notice of preliminary objection on the grounds that:i.That Waiganjo & Company Advocates ought and should be disqualified from representing the 5th respondent due to reasons of conflict as he has previously represented the petitioner in a court of law on matters relating to the church.ii.The representation by the said firm will offend the whole suit, since the advocate lacks locus standi having acted for the Plaintiff in ELC suit no. 68 of 2017 at Nyahururu, Nakuru HCC no. 264 of 2010 and ELC 278 of 2017 Nakuru and specifically relating to the 1st respondent and the petitioner.iii.That the said advocate acted as a mediator between the petitioner and the 5th respondent in reaching settlement to withdraw the suits.iv.That the advocate Wangari Barbara Christine who has been acting alongside Waiganjo & Company advocates ought to be disqualified from representing the 5th respondent or any other party in the suit due to conflict of interest.v.There could arise a breach of confidentiality as the said firm is privy to information relating to the petitioner.vi.The continued representation by the firms offends the code of conduct of advocates, the law of evidence and the Advocates Act.vii.The appointment of the said firm of advocates constitutes a gross abuse of the petitioner’s right, confidentiality and to the extent of this honourable court and such representation should be disqualified with costs.

13. By the Court directions of April 19, 2023, the petition and the preliminary objection were to be canvassed by way of written submissions. Both parties have filed submissions in support of their various arguments.

petitioner’s Submissions 14. Counsel for the petitioner filed submissions 0n May 23, 2023 which to a large extent mirrored the grounds in the petition. He urged the court to allow the petition as prayed.

respondent’s Submissions 15. Counsel for the respondents only addressed the issues raised in the preliminary objection. He submitted that the replying affidavit dated February 22, 2023 is alien to the respondents, the author is unknown, and stated that an affidavit is not a pleading. Order 1Rule 13 of the Civil Procedure Rules 2010 deals with the aspects of entering appearance and pleadings where there is a substantive suit.

16. Counsel submitted the petitioner failed to seek leave to file a supplementary affidavit and the preliminary objection offends the provisions of order 51 rule 14(3) and is not properly on record.

17. Counsel submitted that the affidavits are properly on record and any technicalities as to misdescription of the parties or otherwise in titles or other irregularities in the form thereof should not be used to strike out the affidavits.

18. In conclusion counsel urged the court to find the preliminary objection lacks merit and ought to be dismissed.

Analysis Of Issues. 19. I have carefully considered the petition, the response thereto, the Notice of Preliminary Objection, and the parties’ submissions. The following are the issues for determination;i.whether the preliminary objection is meritedii.whether the petition is meritediii.what reliefs if any ought to be granted

Whether The Preliminary Objection Is Merited 20. What constitutes a Preliminary Objection is set out in the case of Mukisa Biscuit Manufacturing Co. Ltdvs West End Distributors Ltd(1969) EA 696, where it was held that: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 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 is 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 had to be ascertained or if what is sought is the exercise of judicial discretion.”

21. The petitioner’s preliminary objection is premised on Order Rules 13 of the Civil Procedures Rules, 2010 which stipulates:13. (1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding, and in like manner, where there are more defendants than one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.(2)The authority shall be in writing signed by the party giving it and shall be filed in the case.

22. The above provision is clear that, where there are more Defendants any one of them may be authorized by any other of them to appear, plead or act in the proceedings. In the instant petition, the 6th respondent filed a Replying Affidavit sworn on February 22, 2023. in Paragraph 1 he avers he is the 6th respondent herein duly competent to swear the Replying Affidavit on his behalf and on behalf of the 1st, 2nd 3rd, 4th and 5th respondents. Despite the assertion by the 6th respondent he failed to attach an executed authority by the 2nd, 3rd, 4th, and 5th respondent mandating him to swear the Replying Affidavit on their behalf. The failure to render an executed authority by other defendants renders the affidavit herein as fatally incompetent.

23. In Chalicha Farmers’ Co-operative Society LtdvsGeorge Odhiambo & 9 others (1987) eKLR, the Court of Appeal observed on representative suit thus: - “This suit raises some points to be considered in law. The first is that when the summonses were served, only four entered appearances and filed defences. At the time of the hearing two of those who filed joint defences attended and participated in the hearing. One of those who neither entered appearance nor filed defence attended and participated in cross-examining the Plaintiff’s witnesses. Others never entered appearances or filed defences or attended the hearing. Their claim is that they had appointed the first respondent, George Odhiambo, as their spokesman. The question is, is that the proper procedure? If George Odhiambo was to represent them then, either Order 1 Rule 8 or Rule 12 of the Civil Procedure Rules should have been followed. It was not proper in that respect and the trial judge should not have allowed George Odhiambo to represent and proceed with the suit as he did…George Odhiambo could not have been allowed to represent other defendants without written authority. This caused a miscarriage of justice.”

24. It is quite clear that a party in a proceeding cannot purport to appear, plead and act on behalf of others until and unless he is so authorized to do so in writing and the authority is filed in such a proceeding. To my mind, therefore, a statement in an affidavit that one has the authority of the co-defendants is not enough. Such an authority, properly signed by the party giving the authority, must be filed in the proceeding. In the circumstances, I find the case against the 2nd -5th respondent is unprosecuted they ought to appear and plead.

25. The other issue raised in the Notice of Preliminary Objection is the disqualification of the firm of Waiganjo & Company Advocates as well as Wangari Barbara Christine from acting for the respondents on account of conflict of interest. the petitioner avers that the said counsel has previously represented him in several suit and is thus prejudiced as there is bound to be a breach of the advocate client confidentiality.

26. In the case of Dorothy Seyanoi Moschioni vs Andrew Stuart &another (2014) eKLR with respect to conflict of interest, Gikonyo, J held as follows: - “But besides that, the mere fact that an advocate acted for both parties in an agreement subject of the proceedings, does not per se amount to conflict of interest. The party applying must show there is real possibility of the advocate concerned using the privileged information to the detriment of the said party and or to the advantage of the other party.”

27. It is my considered view that it is a Constitutional right for every litigant to be represented by counsel of their own choice. This is the spirit under article 50 (2) (g) of the Constitution. It is thus imperative that before any disqualification of an Advocate is done, there must be a clear demonstration of the reasons and justice for such disqualification.

28. In the circumstances therefore, I am not persuaded that the petitioner has adduced sufficient reasons for the disqualification of the counsel for the respondents.

29. The upshot is that the Notice of Preliminary Objection dated August 22, 2022is without merit. The same is dismissed.

Whether The Petition Is Merited 30. The petitioner hotly contests his deregistration from the membership of the 1st respondent. He averred that on 11th March 2022, in utter violation of the 1st respondent constitution, the 2nd to 6th respondents convened an irregular, and wrong meeting held at Kiamunyeki Local Church, convened without notice and irregular resolutions were passed to wit the petitioner was to attend a disciplinary meeting for allegations of gross misconduct, the petitioner was not allowed to transact on behalf of the church and the petitioner was suspended from the church.

31. On the other hand, the respondent avers that the petitioner was invited to the general meeting but left before the same was concluded and it was in that meeting that the members resolved to deregister the petitioner as a member of the 1st respondent as well as ex-communicated him.

32. The petitioner denies receiving any notice inviting him for a meeting. Aggrieved by the resolutions of the respondent the petitioner instituted these proceedings. He contended that the respondents actions grossly violated his rights under articles 10(2), 25, 27(1), (2), 28, 47 and 50 of the Constitution as well as under the Fair Administrative Actions Act.

33. Article 10(2) of the Constitution provides for natural values and principles of good governance as follows: -“2)The national values and principles of governance include: -a)patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people;b)human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised;c.good governance, integrity, transparency and accountability; andd.sustainable development”.

34. Article 47 of the Constitution provide as follows: -1. Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.2. If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.3. Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall: -a.provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; andb.promote efficient administration.

35. Further, the Fair Administrative Actions Act at Section 4(1) provides as follows: - “(1) Every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair…”

Determination 36. From the record, there is no evidence of service of the notice calling the petitioner for a disciplinary meeting, it is evident that the meetings were held without his consent, and various resolutions were made. In the circumstances, it is true the petitioner was condemned unheard and his rights to a fair hearing were ignored.

37. This court’s view is that the disciplinary process was commenced hastily without following the law and in effect breached the petitioner’s rights to a fair hearing and a fair disciplinary process under article 47 of the Constitution.

38. In the circumstances this court finds the Petition is partly merited as some reliefs sought have been overtaken by events and renders the following verdict: -i.A declaration does issue that the respondents breached the petitioner’s rights under articles 10, 27, 47, and 50(1) of the Constitution of Kenya.ii.A declaration issued that the meetings held on May 17, 2022and March 11, 2022 and the resolutions passed are null and void.iii.A declaration does issue revoking the changes made by the Registrar of Societies on the basis of the resolutions passed.iv.An order directing the petitioner to be reinstated back to the office of the Bishop to the National Chairman and his name be reinstated in the register at the Registrar of Societies’v.Each party to bear its costs.

It is so ordered.

JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF OCTOBER 2023. P.M. MULWAJUDGE