Board Of Trustees Of African Independent Pentecostal Church Of Africa Church v Peter Mungai Kimani, John Wainaina Mwaura Isaack Njoroge Mwihaki Paul Mwangi Waweru James Njoroge Kamande Joseph Mbugua Mwaura Michael Kariuki Ndungu Isaack Ndungu Kihama Wilson Wanyoike Kinuthia Peter Gitau Kangethe John Wanyoike Murigi Isaack Macharia Mburu & Harun Mwaura Mwangi [2016] KEHC 4604 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  285 OF 2014

BOARD OF TRUSTEES OF AFRICAN INDEPENDENT

PENTECOSTAL CHURCH OF AFRICA CHURCH ………….PLAINTIFF

VERSUS

PETER MUNGAI KIMANI………………………………..1ST DEFENDANT

JOHN WAINAINA MWAURA……………………………2ND DEFENDANT

ISAACK NJOROGE MWIHAKI………………………….3RD DEFENDANT

PAUL MWANGI WAWERU………………………………4TH DEFENDANT

JAMES NJOROGE KAMANDE………………………….5TH DEFENDANT

JOSEPH MBUGUA MWAURA ………………………….6TH DEFENDANT

MICHAEL KARIUKI NDUNGU………………………….7TH DEFENDANT

ISAACK NDUNGU KIHAMA…………………………….8TH DEFENDANT

WILSON WANYOIKE KINUTHIA………………………9TH DEFENDANT

PETER GITAU KANGETHE……………………………10TH DEFENDANT

JOHN WANYOIKE MURIGI……………………………11TH DEFENDANT

ISAACK MACHARIA MBURU ………………………...12TH DEFENDANT

HARUN MWAURA MWANGI………………………...13TH DEFENDANT

RULING

By an application dated  21st March 2016  under certificate of urgency, the defendants/applicants  herein  seek from this court orders  of stay of  the orders made  by this court  on 14th March  2016 pending hearing  an determination  of an appeal in the Court  of Appeal. The application is brought  under the express provisions of  order  42 Rule 6 of the Civil Procedure  Rules and supported by an affidavit  sworn by  Peter Mungai Kamau on 1st March 2016  and a  supplementary  affidavit  sworn on 14th April 2016 by the same  deponent.  The grounds upon which the application is predicated are that:

This court  on 14th March 2016  validated  and extended   injunctive  orders  in favour of the plaintiff which orders the plaintiffs, their  agents, servants  and cronies  have used to create  tension, intimidation, oppression, threats, violence  and to destabilize  the AIPCA in Gatanga  Diocese  which is  in Muranga  County during the holy  week  and the Easter  season .

The  defendants  being  grossly  dissatisfied  with the court’s ruling of  14th March, 2016  have lodged  an appeal against  the same.

The parties   were co-existing harmoniously  and peacefully before  the court issued  the said orders  on 14th march  2016  a fact the court  grievously omitted  to consider  to the utter prejudice of the defendants  and peace of the  AIPCA Church in Kenya.

The orders herein issued on 14th March, 2016 have been used to excommunicate the defendants from the church.

The defendant’s appeal is notoriously meritorious.

No prejudice whatsoever will be suffered by the plaintiff trustees herein.

It is fair and just in the circumstances of this suit and the instant application for the court to exercise its discretion in favour of granting the applicants the orders sought.

In the affidavit sworn by Mr  Peter Mungai Kimani, the 1st defendant, the defendants/applicants  aver that on 14th March 2016  the court issued  orders restraining  the suspension  of the defendants  from their  serving  ministries; that being  extremely dissatisfied with the said  ruling the defendants  had lodged an appeal against  the same; which appeal is notoriously  meritorious.  That  the learned judge  failed to  realize that the parties  were co-existing  peacefully for over one  year before  she reinstated  the injunctive  orders on 14th March  2016  which  are now  being used by Amos  Kabuthu Mathenge, the  self imposed spiritual leader of the church, his agents to cause violence and destabilize the church; That after the  orders of 14th March  2016  the plaintiff, Amos  Kabuthu Mathenge, his agents and followers started  issuing  threats to the defendants  stating that  they should  not even be seen  in worship places; That the  said agents  of the Archbishop had been spreading  propaganda and  rumours  even in Kikuyu  radio stations   castigating   and  demonizing  the defendants in a  brazen misinterpretation  of the  order; That this court should have realized  that Gatanga AIPCA church was  in peace and harmony without any court  orders and  the church congregation had gotten used  to their spiritual leaders; That it is  extremely  demoralizing  to ask the defendants  to go back to  positions they left years  ago and  to start wearing  different  attires  for their ministries; That the  defendants  were now  fearing for  their lives  especially  during the Easter  period where  they had been  threatened  not  to attend  the Holy Oil Ceremony; That  there is  urgent need to  suspend and stay the said  orders of 14th March 2016  for the sake of peace and harmony  in the church at Gatanga Diocese  and in the whole  country; That unless the  said orders are  stayed, they will continue  to cause grave  injustice  and suffering  to the congregation of Gatanga  Diocese since their  spiritual  leaders  cannot perform their rightful solemn duties; That this court  greatly  misapprehended  the facts   and the law and  especially   in failing  to properly investigate  the issue of  summons  allegedly  served  upon the  defendants which   was not true; That it is  fair and just  in the  circumstances of this suit  and the instant application for the  court to exercise  its discretion in favour of granting the applicants orders sought  since there is no prejudice at all that will be  suffered by the plaintiff Board of Trustees  as there are  no issues of  church properties  involved in this case.

The application by the defendants  was opposed by the plaintiff who filed an affidavit  in reply sworn by Eliud  Njua Juma  on 13th April  2016  and filed  the same day. In the said  replying affidavit, the deponent  deposes, contending  that the application by the  defendants  in unmerited  and is ill willed as the  applicants appear to be vexatious  litigants  since  they cast  aspersions about the court and the judge  handling the matter; That the  application is meant to prefer an appeal before the same court  through the backdoor whereas  such an act  is untenable   in law; That the ruling by  this court  was merited and based on  considered analysis  of the law  and the facts; That  this court cannot  issue the  orders sought  as that would  be tantamount to sitting  on an  appeal arising from its own  decision and that the  probability  of the success of the intended  appeal is out of the purview  of the court; That the orders  of 14th March 2016  were based on  an in-depth analysis  whereby the court  gave a comprehensive  ruling and any assertion of  peaceful co-existence  cannot be  a basis for  issuance  of stay  rather it  ought to have been  a ground for  opposing  the said  application; That it is  rather unusual, vexatious and frivolous  to cast  aspersions  against the  Archbishop  by asserting that  he is a self-imposed spiritual leader  whereas  the defendants  have previously acknowledged  his leadership in these  proceedings where he is not even a  party; That no threats  had  been made, issued or alleged  against the Archbishop who is not  a party to these  proceedings hence the allegations  against him are  uncalled for  and offends the rules of   natural justice; That any  allegations of rumours  through vernacular radio is unknown to the deponent, is unjustified  and  made in bad faith; That the  applicant/defendant’s  suspensions  are still in force  hence they  are not  suited to officiate any ceremonies  of the church and  that if they did so they would  be committing an  offence actionable  by the church  as spiritual discipline  ought to  be upheld; That the  church has  laid down processes  of being a clergy hence it is  not demoralizing  since the  applicant  had been accused of misrepresenting  themselves  as holding  various  clergy  positions; that claims  of threats  against  the applicants  is devoid  of evidence  and only  imaginary; That no prejudice/ harm shall be suffered  if orders  of 14th March  2016  are sustained  as there are no chaos  or disturbance caused  arising  from their  issuance  since there is a functional clergy house parishioning  and ministering the defendants; That there   was  no misapprehension of any facts    which facts  are not even disclosed  hence the  orders  sought  herein   are underserved; That this court is  functus  officio, that this court is being  invited to reconsider  its findings  since no stay   was sought  in the first  instance hence  this application  is an afterthought  meant to  delay  the speedy  disposal  of the suit based  on flimsy reasons not  predicated  on any legal  principle.

In a rejoinder, the 1st defendant/applicant swore  a supplementary affidavit on 14th April  2016  contending that Eliud Juma  hails from Nyeri Diocese of AIPCA Church   and had no idea of  what  was happening in Gatanga Diocese after the ruling  of 14th March  2016; That  for  the sake   of peace and harmony   in Gatanga Diocese  the defendants  are willing to abide by any conditions that the Honourable court  may  wish to grant to give them a chance  to  ventilate  the appeal as they  serve  the church; That the language  used by the deponent  in his  replying affidavit  is derogatory and uncalled  for;  That the defendant had  continued to receive   threats  on their lives  and cannot even  excise their  freedom  of worship.

The parties’  advocates orally urged  the application before me  on 20th April  2016  and I set the  ruling for  10th May 2016   but  upon being  assigned  other duties  by the principal judge, I was out of the station and  was unable to deliver  the ruling on schedule and parties  were issued  with notice  for today.

Mr Kirimi counsel for the applicants submitted relying on the grounds  on the face of the application, the supporting  and supplementary  affidavits  and case law  while urging this court to  exercise  its discretion in favour of the applicants because  the orders made by this court on 14th March 2016   despite their clarity, they had been misused  and misinterpreted  by agents  of the Church  Archbishop to scuttle  the activities  of AIPCA  Gatanga Diocese.  Mr Kirimi submitted that on a close look at the orders of this court made on 14th March 2016, the defendants   were not barred from enjoying their freedom of worship.  However it   was contended that the plaintiffs had barred the defendants from worshiping in the church.

Further, that the appeal as filed challenging  orders   of this court  was arguable  since the findings  of this court  were  in error  as  to whether  or not summons to  enter appearance  were issued  in this case  and that this court  also considered extraneous  matters  which were not part  of  the proceedings  but  were only  introduced  in the submissions.  Mr Kirimi submitted that since his clients have a meritorious appeal, it shall be rendered nugatory if successful.  That  the applicants  who are  members of the AIPCA Gatanga  Diocese Church   are under  pressure  of the church suspension  and that  their  congregations  are  suffering as  there is  no one to preach to the congregation.  That the  plaintiff  and especially  the Archbishop  are intending  to take  over the churches  presided  over by the  applicants who  were properly  ordained.  That the applicants would suffer because they would have no congregation to go to.  Further,  that the applicants would  also suffer  disrepute  and  character  assassination; and their  freedom of  worship  and freedom  to exercise  their right to worship  had been  curtailed  and that  they may not recover their  positions if the appeal is successful.  In addition, Mr  Kirimi submitted that no  prejudice  will be  suffered  by the plaintiffs  who are  church  Trustees  whose role  is to  protect church properties.  He further submitted that there was no evidence that any of the church properties was in danger of wastage and destruction.  That Eliud  Juma   was not  a member of   Gatanga  Diocese  hence he does not  know what  is happening  on the ground and that it  was the  Archbishop  who was  harassing  the  applicants.

Mr Kirimi submitted that the applicants were willing to abide by any reasonable   conditions   that the court would give to enable them enjoy a stay.  He  relied  on two cases  CA 114/2013 Kenya  Airports Authority  V Mstubell  Welfare  Society [2014] e KLR  and  Charles  Ngatia Nguyo  Vs Ekira Gathoni & Another  [2014] e KLR

Mr Kirimi maintained that the appeal need not be successful at the end of the day for stay to be granted but that   should the appeal succeed, the appellants will suffer irreparably.  Further, that the application had been timeously filed and his clients   would suffer substantial loss if stay pending appeal is denied.

According to Mr Kirimi, the orders of 14th March 2016 have destabilized the church and despite this court’s hardened advise to the parties to keep peace, the plaintiffs continue to castigate the defendants/applicants. That the applicants had  complied with this court’s  orders  to set down this matter  for hearing  which  is good  faith  and that  they intend to expedite   the appeal as they have  already applied for typed  proceedings.

In opposing  the application by the defendants/applicants, Mr Mathenge counsel for the plaintiff/respondent submitted, relying on his client’s  replying  affidavit  sworn by Eliud  Juma  on 13th April  2016  and contended   that the orders  of stay as  sought are  illegal  and inequitable.  He submitted that there was no evidence that the applicants had been promoted, by who and what instruments   of promotion they possessed.  It was submitted on behalf of the respondent that the applicants were under suspension which had not been lifted and neither had they sought   to lift the said suspension.  That as a result, the applicants cannot perform any rites of the church as clergymen.  That the applicants had not disclosed what extraneous matters this court considered by its orders of 14th March 2016.  Further, it was submitted that in any event, the applicants had since filed their defence to the suit which is an illustration that parties are anxious to conclude this matter.  It  was submitted that  it would  be seriously  prejudicial  if stay  was granted as it  will  mean  the church having  two sections of  clergymen.  Further, that there was no evidence that the applicants had been prohibited from worshipping in the church and when.  In addition, Mr Mathenge urged that the Archbishop should be left out of the issues since he was not privy to the matters at hand.  Further, that allegations of propaganda made in radio stations   was farfetched.

Mr Mathenge submitted that the orders being sought are discretionary and without a proper basis for allegations of excommunication which is a procedural matter for the church, the applicants are not entitled to the reliefs sought.

On the claim that the  respondents had misinterpreted  the courts order, it  was  contended on behalf of the respondent that this was  a baseless  claim since the  applicants  had not sought  for interpretation or pronouncement  of the said  orders to the  parties hence that cannot  be a ground  for stay orders  being granted. Further submissions were that the applicants were under the stewardship of the Archbishop and yet they had not notified him of the matters concerning their being barred from worshipping in the church. On the authorities  relied on by the  applicant’s counsel, Mr Mathenge  submitted that the Kenya Airports  Authority  case related to different  circumstances   concerning  the right to   resettle  landless  Kenyans.  On  the second  decision of Charles  Ngatia, it  was submitted that the matter  arose from a  suit for  revocation of title  of land as opposed to the issues before   hand which  relate  to spiritual  and doctrines of  ministries  of a church.  It  was submitted  that the  Trustee Mr Juma is a Trustee  of the Gatanga  Church and that  in any event, the applicants have not  demonstrated  that they have  their own church buildings  and facilities.  That all the existing facilities belong to Gatanga Church (Diocese) and cannot be allowed to be used by parallel groups.  It  was submitted that the  injunction granted by this  court did not  prohibit  the applicants from worshipping  in the church  but from misrepresenting themselves  as church  ministers  to the congregations.  Further, that allegations that the applicants were performing functions of the clergy violated the church standing orders. Mr Mathenge urged the court to dismiss the applicant’s application with costs..

In a brief  rejoinder, Mr Kirimi counsel for the applicants  submitted that the applicants  were clergymen  before the orders   were issued  and that it  would appear  the respondents  were shifting the burden to the applicants to prove that  they were  properly  ordained.  It was submitted that the applicants had now filed a defence and counterclaim to the suit seeking for lifting of their suspension.  On the issue of extraneous matters, counsel stated that the submissions filed on 30th November 2015 by the applicants were clear.  It was contended that the issues affected the Archbishop since he had not countered the allegations against him.  It was also submitted that issues of the church standing orders were irrelevant.  Mr Kirimi urged the court, to exercise its discretion for the sake for peace and grant the orders sought.

Determination

I have carefully considered the application by the applicants /defendants, the grounds in support, the supporting and supplementary affidavit as well as the replying affidavit by the respondent/plaintiff. I have   also considered the parties’ advocates oral rival submissions and the authorities cited by the applicant’s counsel.

In my view, the only issue  for determination in this matter is  whether the  applicants  have satisfied  this court on  the conditions  for stay of an injunction issued against  them pending  the hearing and determination of the appeal  to the Court of Appeal, challenging  the ruling/orders of this  court made on  14th March 2016.  To answer that single question, it is important to provide some background information on the origin of the current dispute.

On 4th day of December  2014, this court  after hearing both parties to an application for injunction made by the plaintiff issued  an order granting the respondents  an injunction sought in  their application dated 15th September  2014 and filed on the 16th September   2014 restraining  the defendants/ applicants  herein, their agents, servants, employees  or any other  persons acting through them and  under their direction or supervision  from holding  any meeting, presiding  over the AIPCA  Gatanga  Diocese  Church leadership activities, roles  or in any  other manner  from engaging in the leadership affairs of the said  Church pending  hearing and  determination  of the suit  herein  or the lifting or their  suspension whichever   was the earlier.

The court further  ordered  that in order to prevent any mischief  that may result should the beneficiary of the  injunctive  relief use it as both a shield and a sword  at the same time, and for  avoidance of doubt, the  defendants  were not  barred  from congregating with the rest of the church membership, and or attending  church services  as worshipers.

The court further ordered  that in view of the nature  of the dispute  involving church leadership, the injunctive  order    was conditional  upon the plaintiff  expediting the process of  readying of the suit  for hearing and disposal  within 120 days from the date  of the  ruling failure to which  the temporary  injunction granted  would lapse.

Following the above ruling  the applicant’s counsel Mr Kirimi sought  for typed  copy of  ruling which  was  handwritten at that time and leave to  appeal if necessary.  He also sought for stay of execution of the said orders pending the filing of the said appeal.  The court  did grant  leave to appeal but declined  to grant stay orders for  reasons that the applicants/defendants   were under  suspension from the Church  leadership  and further, that there  was no such  prayer for  lifting or stay  of the said  suspension.  The record shows that in the intervening period, the Church Trustee who had been actively involved in the conduct of this matter on behalf of the plaintiff/respondent Mr Timothy   Gachoya fell ill and eventually died.  The respondent/plaintiff also did file an amended plaint on 27th march 2015 and a supplementary list of document on 27th March 2015.

On the same date  of 27th March 2015, the plaintiff  filed an  application  under certificate  of  urgency   dated  26th March 2015  seeking to extend  the validity  of the temporary injunction   issued on 4th December  2014  and for directions  as to the  hearing and disposal of the suit.

As at the time of filing of that application on 27th March 2015, the injunctive orders issued on 4th December 2014 had not lapsed.  They were to lapse on 4th April 2015 hence, the prayer that their validity be extended. In response /opposition to that application the defendants filed the following documents;-

Notice  of withdrawal of Appeal  dated  15th May 2015,

Notice of preliminary  objection to the entire suit  and leave to have  the suit struck  out on the grounds that  the suit had   abated;

Authority by the rest of the defendants to the 1st defendant Peter Mungai Maina dated 21st May 2015.

A replying affidavit by Peter Mungai Maina sworn on 21st May 2015.

Notice of appointment of advocates for the 1st-8th, 12th and 13th defendants dated 21st May 2015 by Kinyanjui Kirimi and Company Advocates.

On 29th June 2015, the plaintiffs filed Notice of withdrawal of suit against the 9th, 10th and 11th defendants.

In the ruling of 14th March  2016  determining that   application dated   26th March  2015   filed on 27th March 2015, this court did find that the suit herein had not abated as there were clear summons to enter appearance on record issued and served upon the defendants, with a duly sworn affidavit of service by the process server who effected service. The court also exercised its discretion and extended the validity of the injunctive orders and provided reasons for such orders which reasons are on record, backed by statute law and case law.

It is that ruling that the defendants are dissatisfied with and which they have expressed their intention to challenge before the Court of Appeal.  They did file a Notice of Appeal which they have annexed to their application dated 21st March 2016.  The applicants/defendants   have also filed a defence and counterclaim to the plaintiff’s suit herein. The defence and counterclaim are not filed on a without prejudice basis.

In my ruling of 14th March 2016, I allowed the application  for extension of the injunctive  order made  on 4th December  2014 for  a further  12 months  from the date of the ruling and  I also  dismissed the preliminary  objection by the defendants  who had  contended that the suit  had abated  contending that no summons  to enter appearance  had been issued  and or served   upon the  defendants.  In my ruling, I found that  the preliminary  objection  was misplaced  since there  was on record   clear evidence  of issuance  and service  of summons  to enter appearance  upon the  defendants  which the  defence counsel  appeared  not to have seen and which he  had stated  in his submissions, that this court should investigate.

I also  exercised  my discretion suo motu and in the interest of justice and granted  the applicants/ defendants leave of  14 days  to file and serve their statements  of defence although they were out of time and directed  the parties  to comply with pre-trial requirements  under Order   11 of  the Civil Procedure Rules  within  45  days  and I set  a mention   date for   17th May 2016  to confirm  compliance. The mention dated never came to be as it was interrupted by this application seeking for stay of the orders of 14th March 2016 pending hearing and determination of the appeal following the filing of a notice of appeal.

The conditions to be fulfilled for a grant of stay pending appeal are clearly set out in the provisions of Order 42 Rule 6 of the Civil Procedure Rules namely:

That the applicant shall suffer  substantial loss if  stay is not  granted; and  that the  appeal, if  successful shall be rendered  nugatory;

That the  application has been  made without  unreasonable  delay; and

Such security for due performance of decree as the court may order has been deposited.

Rule 5(2) of the Court of Appeal Rules also sets   out principles for granting of stay pending appeal and these are:

That the appellant must demonstrate that there is an arguable appeal and that if stay is not granted the appeal if successful shall be rendered nugatory.

However, I must emphasize that the arguability of the appeal is not for this court to determine as to do so would be straying into the territory of the appellate court.

Applying  the above  established  principles  for stay pending  appeal, and commencing   with the condition  as to whether  the applicants  have brought  this application without  unreasonable delay, I note that  the decision/ruling of this court   was made on 14th March  2016  and the application  herein   was made on 23rd March 2016  which  was within  9  days of the date of the ruling.  On the other hand, the Notice of Appeal was filed on 29th March 2016 with the Court of Appeal. It is  dated  21st  March 2016  and lodged  with  the Deputy  Registrar  of the High Court   on 23rd  March 2016.

In my humble view, the application was made timeously, within 9 days of the date of the ruling.

On whether  security  for the  due  performance  of decree is necessary in this  matter, in my view, this not being  a monetary  or proprietary  decree, it would not be necessary to order for   such deposit  of security for  the due performance  of decree.  Furthermore, the appeal is against an interlocutory order and not against decree.  The substantive  suit is still pending hearing  and determination, the defendants  having filed  their statement  of defence and counterclaim  in accordance  with the orders  of this court made on  14th March  2016.

The other condition for fulfillment before stay can be granted is whether  the applicants  have demonstrated  that substantial  loss will result  if stay is denied  and that therefore  the appeal if successful shall  be rendered  nugatory.

To answer the  above question on substantial loss, this court  notes that  prior  to the filing of the  application  dated  27th March  2015,  there  was  in place an injunctive  order  of 4th December  2014  against  the defendants.  Therefore, although  the applicants  contend that   there   was  relative peace in church  and that the  orders  of 14th March 2016  had brought  chaos, or been  misinterpreted  by the respondents to mean excommunication of the  defendants   from worshipping  and or performing  their rites  as clergy of the Gatanga  AIPCA Diocese  Church, this  court does not   find any  basis  in that argument.

Furthermore, the allegation that  the orders  of 14th March  2016   were  misinterpreted by the respondents   is self defeatist  for reasons  that the applicants  counsel  conceded  in his submissions  that the said  orders  were  clear.  And if  they were not clear, then this court  does not understand  why  the applicants  never sought  for a clarification of the said  orders to  the parties to  enable  compliance by both parties.

In addition, following the orders of 4th December 2014, the applicants filed a Notice of Appeal which they later withdrew.  From the  tone of the  application herein, the applicants  no doubt seek  to  stay the orders  of 4th December 2014 albeit  the application  is couched  to refer  to the orders of  14th March 2016.  This is because  it has not been demonstrated  how the  orders  of  14th March  2016  would  cause   substantial  loss or hardship to the applicants  who have  gone ahead  to implement  them by  inter alia, filing a  defence   and counterclaim to the plaintiff’s suit.

Further, this court   was not  shown any evidence  that the  applicants, between 4th April 2015   when the injunctive  orders  lapsed and 14th March  2016, when this court extended the validity of the injunctive orders, had been  peacefully performing their  religious /church rites  as clergymen legitimately and that therefore  the orders of  14th March 2016  had disturbed  status quo, being  that their  suspension from church leadership had been lifted   during that period.

The applicants  equally never  demonstrated  before this court  that the plaintiff or Arch Bishop  Amos Kambuthu Mathenge  or his alleged  cronies   had barred  them or  excommunicated  them from being worshipers or worshipping in the Church as alleged and neither  was there any evidence  that there  were threats  and or violence meted out by the plaintiffs  to the applicants.  Threats to life and violence are culpable and cognizable crimes under our Penal Code Cap 63 Laws of Kenya.  There is  no evidence  that the applicants  ever reported any such threats  and  or violence  to the law enforcement  officers, being, the Police, to take appropriate  action against  those issuing   threats or violence.  The allegations of threats and violence therefore remain bare unsubstantiated allegations.

This court  further finds that besides  the preliminary  objection  that the suit herein had abated, which was  dismissed and the  opposition  to the application for extension  of the injunctive orders, there   was no application  by the defendants  seeking  to discharge  the injunction which   was not  permanent  and neither   was there  any evidence that they had  at that time sought  for the lifting  of their suspension  from  adorning  themselves as church  leaders.  By this  application, for stay, the applicants  are by no  means seeking orders  installing  them as church  leaders  and lifting  their suspension, without any formal  specific  prayers for  such orders  to be made  in their favour.

The applicants, in my view, are also seeking through the backdoor, to discharge the injunction which was extended, without saying so specifically.  Further this court notes that the application for extension of the injunction was not permanent in nature.  Furthermore, the applicants   have now complied with the order of this court of filing and serving their defence and counterclaim upon the plaintiffs.  In that regard, I find that to grant stay of injunction will not serve any interest of justice in this case.  No substantial loss has been demonstrated to be suffered by the applicants if stay is declined.  It has also not been demonstrated that the appeal if successful shall be rendered nugatory if stay is not granted.  In my humble view, to grant the orders sought will be to assist the applicants procrastinate the expeditious disposal of cases in an efficient and cost effective manner. In any case, the period within which the applicants allege there was peace was during the subsistence of the injunctive orders since it has not been shown that the applicants, despite the injunctive orders of 4th December, 2014 had been allowed by the plaintiff to act in breach thereof  and that when the said orders were validated after a short stint of lapse is when hell broke loose in the Church.

Excommunication of worshippers or church leaders takes a process. This court has not been shown any letter or instrument of excommunication from the Church top leadership to the applicants and neither have the applicants demonstrated that there has been or is an attempt to excommunicate them from the church without following the laid down procedures and as per the Church Constitution. If there was any such attempt to excommunicate them unprocedurally, nothing prevents the applicants from seeking the protection of this court since the court order of 14th march, 2016 was clear.

It is  for those many reasons that I decline to grant the orders  sought by the applicants/defendants in their  notice of motion dated  21st March  2016  which I find  unmerited.

Accordingly, the notice of motion as filed by the applicants is dismissed.  In the spirit of promoting harmony and reconciliation between and among the parties to this dispute, which I have always beseeched these parties from the onset, I order that each party shall bear their own costs in view of the fact that  both parties are members of the same church and the dispute being one over the church leadership.

Dated, signed and delivered in open court at Nairobi this 31st day of May, 2016.

R.E. ABURILI

JUDGE