[2022] KEHC 2731 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

CIVIL APPEAL NO. E003 OF 2021

ZACHARIA KATAMBO KIMUYU

(Suing on his own behalf and as the Chairman and Overseer of

Eagle RiseChurch Lower Makueni Region)..............................................................APPELLANT

-VERSUS-

CHRISTOPHER MATHEKA NDAMBUKI

(Sued as the Former Pastor Eagle Rise Christian

Church Pipeline Branch)...........................................................................................RESPONDENT

(Being an appeal against the Ruling and the orders of the Senior Principal Magistrateat Makindu

(The Hon. J.OMagori delivered on 12/1/2021 in Makindu SPMCC No. 200 of 2020)

JUDGMENT

1. In a ruling delivered on 12th January 2021 in Makindu SPM Civil Case No. 200 of 2020 the magistrate’s court concluded as follows –

“It is clear that the subject matter in issue in this case is directly and substantially related to the subject matter in Machakos High Court Civil Case No. 13 of 2020. It is therefore necessary to stay proceedings in this case pending hearing and determination of the case before the High Court”.

The upshot therefore is that the plaintiff/applicant’s application is dismissed with costs to the defendants/respondent and the proceedings in this case are hereby stayed pending hearing and determination of Machakos High Court Civil Case No. 13 of 2020.

2. From the above ruling of the magistrate’s court, the appellant has come to this court on appeal through counsel on the following rounds –

1) The learned magistrate erred in law and fact in holding that Machakos High Court Civil Case No. 13 of 2020 was directly and substantially related to the matter in Makindu SPMCC No. 200 of 2020.

2) The learned magistrate erred in law and fact by failing to recognize that Makindu SPMCC No. 200 of 2020 was concerned with elections which were illegally held by the respondents herein compared to Machakos HCCC No. 13 of 2020 which subject matter was administrative wrangles between the Bishop of the Church and some pastors, the respondent inclusive.

3) That the trial magistrate failed to recognize the fact that Makindu SPMCC No. 200 of 2020 was between the appellant and the respondent herein and the Bishop of the church had nothing in it.

4) The magistrate misconstrued the issues raised in Makindu SPMCC No. 200 of 2020 and an order of injunction ought to have been issued to restrain the respondent from further continuing to run the affairs of Eagle Rise Church Lower Makueni Region while not validly and or illegally elected.

5) The learned magistrate totally disregarded the appellant’s evidence that had been presented before court in reaching his decision.

6) The learned trial magistrate erred in law and fact in holding that the appellant did not have a prima facie case as against the respondent herein.

7) The trial magistrate erred in law and fact and failed to appreciate the principles for grant of injunctive orders.

8) The learned magistrate erred in law and in fact by failing to thoroughly evaluate the evidence presented before him.

9) The learned trial magistrate erred in law and fact by staying Makindu SPMCC No. 200 of 2020 whereas that matter was not directly and substantially related to Machakos HCCC No. 13 of 2020.

3. The appeal was canvassed through written submissions. The appellant’s counsel M/s Mwangangi & Associates filed their submissions on 3rd August 2021 while the respondent’s counsel M/s Martin M. Muithya & company filed their submissions on 15th September 2021. I have perused and considered the submissions of both the parties’ counsel. I note that counsel for the appellant relied on case authorities.

4. Having considered the matter, the pleadings and proceedings in the magistrate’s court and the ruling, as well as the grounds of appeal and the submissions of counsel on both sides, in my view the issues herein for determination are two. First whether the issues in the Machakos HCCC No. 13 of 2020 were substantially the same as in Makindu SPMCC No.200 of 2020. Secondly, whether the magistrate’s court was justified instaying the proceedings in the magistrate’s court to await the decision in the Machakos High Court.

5. From the documents filed in the magistrate’s court in Makindu SPMCC No. 200 of 2020, I note that the parties in Machakos High Court Civil Case No. 13 of 2020 were Rev. Nahashon Wambua Mwangangi, Rev. Tom Mathenge Mwangangi, Rev. Lucas Mutisya Maweu, Rev. Christopher Matheka Ndambuki and Rev. Titus Mwendwa Katingu (suing on their own behalf and on behalf of other pastors and or members of Eagle Rise Christian Church – vs- Rev. Leonard Munyao Wambua. The matter in issue was a meeting held on 14/12/2019 at the Bishop’s headquarters wherein the General Secretary, National Treasurer and Vice Secretary were sacked and replaced. Among other decisions taken therein, Rev. Christopher Ndambuki of Makindu branch was transferred to Kai branch. The orders sought in the Machakos High Court were injunctive orders against the above decisions, among others. I note that the above information on the Machakos High Court suit was disclosed by the defendant in Makindu SPMCC No. 200 of 2020 – Christopher Matheka Ndambuki.

6. The parties in Makindu SPMCC No. 200 of 2020 on the other hand, are Zacharia Katambo Kimuyu (suing on his own behalf and on behalf of the Chairman and Overseer of Eagle Rise Christian Church Lower Makueni Region) versus Christopher Matheka Ndambuki (sued as former pastor Eagle Rise Christian Church Pipeline Branch). The main issue in contest in the Makindu case is the refusal of the defendant/(respondent herein) to comply with the orders of the Bishop to move to Kaibranch (which are the orders made in the Bishop’s meeting above), and instead inciting and mobilizing other pastors to defy the Bishop’s orders. The orders sought in Makindu magistrates’ case above, are that a declaration be issued that the elections held on 9/8/2020 electing the defendant (respondent herein) as chairman and overseer be declared null and void, and that a permanent injunction issued against the respondent herein.

7. In my view, the two court cases herein above, are so closely related and intertwined, that they cannot proceed in parallel separate proceedings, as orders to be issued in one case, will definitely affect the other case. The issues in both cases in my view are substantially the contest on the decision made at the Bishop’s headquarters, which are pending a decision at the High Court in Machakos. Thus my finding is that the issues in the two cases are substantially the same.

8. On whether the proceedings in the magistrate’s court should be stayed pending the determination of the High Court case in Machakos, my view is in the affirmative for three reasons. First, the case in the magistrate’s court at Makindu was filed later, thus the earlier case filed at Machakos High Court has precedence.

9. Secondly, the appellant herein failed to disclose in the Makindu case the fact that he knew of the existence of the Machakos High Court case in regard to the same subject matter in contest in the latter case at Makindu magistrate’s court. This was a violation of the written law in Kenya.

10. Thirdly, on the principle of hierarchy of courts, the magistrate’s court cannot adjudicate and should not adjudicate on a matter whose issues or related issues are pending in the High Court. Such action will put the judicial system in Kenya into disrepute and should be avoided.

11. Lastly, if the plaintiff/appellant herein wants to raise an issue in the case in the High Court at Machakos, the procedure for joinder of parties is available in our statutes. The High Court may consider joining him as a party. Otherwise, the present appeal has no merits and I dismiss the appeal with costs to the respondent.

DATED, DELIVERED AND SIGNED THIS 2ND DAY OF FEBRUARY 2022, IN OPEN COURT AT MAKUENI.

.....................

George Dulu

Judge.