AMOS OCHIENG SIAJE & 2 OTHERS V PEREZ ATIENO OTIENO & 3 OTHERS [2009] KEHC 803 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

Civil Case 142 of 2009

AMOS OCHIENG SIAJE

NAFTALI OLOO NYADHI

AMOS OTIENO SAIKUKU....................................................................PLAINTIFFS

-VERSUS-

PEREZ ATIENO OTIENO

SILPA OYAMO

MARTIN OLUOCH

ERICK CHERUIYOT (OLEKNINI)…...............................................DEFENDANTS

R U L I N G

The plaintiffs/applicants are members of Evangelical Christ Church Of Africa (Ecca) Hera

Mar Adiera- Oruba and brought this suit and application on own behalf and on behalf of the

church. They are Chairman, Secretary and Treasurer respectively of the church. Their case is

that the church is the registered proprietor of land parcel no.  Kanyamkago/Kawere/543

measuring approximately 0. 32 Hectares together with the developments thereon including a

church building. On 10/5/2008, they alleged, the defendants/respondents jointly and severally

trespassed upon this property and forcefully ejected them and other members of the church

out of the church premises and have since placed the 4th respondent thereon with instructions

to refuse members of the church the use of such premises and the land.  By reason of this act,

members of the applicants church have nowhere to worship from and have thus been denied

their constitutional right of freedom of worship.  The applicants sued for a permanent

injunction to restrain the respondents by th emselves, their servants and /or agents from

trespassing on the land or interfering with their right to worship.

With   the suit was filed a Chamber Application under Order 39 rules 1,2,2A 3 and 9 of the

Civil Procedure Rulesand sections 3Aand 63(e) of the Civil Procedure Actfor a temporary

injunction. The respondents did not file any Replying Affidavit or Grounds of Opposition,

but filed a Statement of Defence in which they stated that they use the church in their

capacities as officials of church of Christ in Africa who have an injunction barring the

applicants from interfering with the suit property. It was pleaded that there exists another suit,

HCCC no.21 OF 2005 at Kisumu,over the same cause of action and that a request shall be

made to have the present suit dismissed.  Jurisdiction of this court to hear this suit was

denied. The respondents pleaded the applicants had no capacity to sue them and stated that

there is no society by the name Evangelical Christ Church of Africa (ECCA). Hera Mar

Adiera- Oruba.

The Title Deed for this land was annexed to the affidavit sworn by 1 st applicant to support

the application. The registered proprietor is Hera Mar Adiera (ECCA). There was no effort to

demonstrate that that was the same entity as Evangelical Christ Church of Africa (ECCA)

Hera Mar Adiera- Oruba. This is important because the applicants capacity to sue has been

brought into question. There is no prima facieevidence that the entity named in the plaint is

the registered owner of the land in dispute.

Secondly, the evidence contained in the Supporting Affidavit indicates that the respondents

have taken over the church and the land and excluded the applicants. The action sought to be

restrained has already taken place and consequently a temporary inj unction, which is

prohibitory in nature, cannot do. The applicants require the talking of positive steps to eject

the respondents from the land, and from their place of worship.  They should have sought a

mandatory injunction. (See East African Spinners Ltd And Others .V. Bedi  Investment Ltd,

Civil application no. 72 of 1994 at Nairobi).

In short, the application cannot be granted. The same is dismissed with costs.

Dated, signed and delivered at Kisii this 23rd day of October, 2009

A.O.MUCHELULE

JUDGE

23/10/2009

Before A.O.Muchelule-J

Court clerk-Mongare

Mr. Nyariki for the respondent

Court: ruling in open court.

A.O.MUCHELULE

JUDGE

23/10/2009