Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani,John Wainaina Mwaura,Isaack Njoroge Mwahaki,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 5920 (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 MWAHAKI…………………………………………..............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

1. This ruling determines the plaintiff/applicant’s application dated 26th March 2015 and the defendant’s preliminary objection dated 21st May 2015. In the application dated 26th March 2015, the plaintiffs/ applicants seek from  this court orders:

Spent

That the court be pleased to  extend  the validity of  the temporary  injunction  issued on 4th December  2014  and  consequently issue directions as to the  hearing and  disposal  of the suit.

That costs of the application be provided for.

2. The application is brought under the provisions  of Sections 1A, 1B, 3A and  63( c)  of the Civil Procedure  Act; Order 40 Rule 6, Order  50 Rule 6, Order 51 Rule 1 of  the Civil Procedure Rules and  all other enabling  provisions  of the law.  The said application is predicated  on the grounds that:

On 4th December 2014 the court issued a conditional injunctive order restraining the defendants from interfering with the leadership affairs of the AIPCA Church.

That the orders were to lapse within 120 days or else that suit be made ready for hearing within the same period.

That the period  is due  to lapse  on a around  4th April 2015  whereas all the  pleadings   were issued upon the defendants, who entered  appearance  on 8th October 2014.

That as  was  noted the  respondents  did not  apply to stay  or lift their  suspension and so far the evidence  the applicant  required  to bring  before the court has been  gathered  hence the  matter is  ready for  pre-trial  as to whether parties  have complied with Order  11 of the Civil  Procedure Rules.

That no  prejudice will be suffered arising  from such enlargement of time as the defendants  have not been denied worship  or partaking  in religions  affairs, only their acts of misrepresentation has been impugned.

That it would be in the interest of justice that once the time is enlarged the validity of injunctive orders issued be extended as the plaintiff has now made the suit ready for pre-trial.

3. The application is further supported by the affidavit  sworn on 26th March 2015  by Timothy  Gitonga Gachoya  reiterating the grounds upon which  the application is premised, adding that the  plaintiffs had taken  necessary steps towards  making the suit ready  for hearing after  filing an amended  plaint  on 27th March  2015 but that the defendants  had not filed  their defence.  Further, that it  would be  prejudicial to the plaintiff/applicant  if the injunctive orders lapse  since  the respondents  who had  not  sought the lifting  of their suspension  may revert  to the impugned  acts  and that no prejudice will be  suffered  arising from such enlargement  of the orders  made.

4. On 21st May 2015, counsel for the defendants 1st-8th,12th and 13th filed a  notice of preliminary objection and notice of withdrawal of appeal which they had filed challenging the ruling of this  court made on 4th December, 2014 granting an injunction  against  the defendants.

5. The defendants  also filed  replying  affidavit  sworn by Peter Mungai Kimani sworn on  21st May 2015  deposing, in addition  to the notice of preliminary objection, that  the suit herein had abated.  Further, that the order of injunction had lapsed on 4th April 2015 and therefore there was nothing to be extended.  That the plaintiff went to slumber for over three months and forgot the obligations under the conditional injunction which had now lapsed hence there was nothing to be extended.  The defendants further deposed that they had since withdrawn the appeal after they failed to trace the court file to get proceedings and since there was no order in place. That they discovered that their Memorandum of Appearance   was erroneously filed in this matter and now they had filed a notice of appointment.  The deponent  also deposed  that the application  was bad in law, incurably defective and a gross abuse  of the court process, totally unfounded and the same adopts  a procedure unknown  in law; is  malafides, blatantly misrepresenting  and grossly lacking in merit;  that the application is opaque  and  presumably resjudicata; and that  the applicant is guilty of indolence and unreasonable delay.  Finally, that the defendants will be extremely prejudiced if the orders were to be reinstated or validated.

6. The plaintiff  filed, with leave of court, supplementary affidavit  sworn on 17th June 2015  by Timothy Gitonga Gachoya  rebutting the  deposition by the defendants  and maintaining that the suit  had not abated  since  they served summons  to enter  appearance  on 17th September  2014 and  annexed  to the copy of  affidavit  of  service sworn on 17th September  2014  by Amos Chege Kanoga.  The plaintiff also denied that the application was Resjudicata.  Further, that the Notice of Appeal and its withdrawal by the respondents had never been served upon the plaintiff.  The deponent also maintained  that despite service of  a plaint  and amended plaint  upon the defendants  they had  not filed  any defence but that  nonetheless there  had been attempts  to settle   the dispute through  the church tribunal hence delay  in filing  an amended  plaint.  That further delay  was occasioned  by a suit  which was instituted  in court  challenging  the composition of the church tribunal wherein  an injunction  was  issued in January 2015.

7. On 29th  June  2015  the plaintiff  herein withdrew  suit against  the 9th and  10th  and 11th defendants.  Upon reading the supplementary affidavit  sworn by the plaintiff  on 17th June  2015, the defendants  obtained leave of  court to file  a reply thereto and on 22nd July 2015  Peter Mungai Kimani swore  a replying  affidavit  to the  effect  that Timothy Gachoya who had been swearing  affidavits  in the matter  had since  passed  on and as such the suit had totally  abated.  He also reiterated  that  they had never been served with  summons and that they were  not aware of any properly  constituted  tribunal to adjudicate church disputes  but that  the embattled  Archbishop Amos Kabuthu  Mathenge  tried to  constitute  a tribunal comprising  his friends  to try his  enemies but  the court  frowned  upon him and  stopped him from conducting any business vide  Milimani CMCC 211/2015.  That the defendants had never been requested to attend any mediation or arbitration proceedings to resolve the disputes in Gatanga AIPCA Diocese Church.  That the late Timothy  Gachoya and suspended  Arch Bishop Kabuthu’s supporters  had been meting out violence in church  premises as they tried to evict  legally elected  leaders  of the church  as shown by an  annexture P3 form  and finally, that the defendants  would be  extremely prejudiced  if  the orders  were to be  reinstated  or validated.

8. On 26th September 2015, the plaintiff’s counsel filed   Notice of Appointment of Trustee, one Mr Eliud Njua Juma following the death of Timothy Gitonga Gachoya, one of the trustees of the plaintiff.  This was pursuant to Sections 2 and 3 of the trustees (perpetual succession Act) Cap 164 Laws of Kenya. The plaintiff also filed a further amended plaint striking out the 9th, 10th and 11th defendants from the suit, among other amendments.

9. On 27th October  2015 the parties  advocates  agreed to have the  application and preliminary  objection  disposed  of by way of written  submissions which they  dutifully filed and  exchanged  and this court  is now called upon  to determine the application  and preliminary objection together.

10. In their  written submissions dated 3rd November 2015  and  filed in court on 5th November  2015, the plaintiff’s counsel  contended that the suit has  not abated  and maintained  that if it is  the issue of  service  of summons to enter appearance, the suit  was filed on 15th September 2014 and the summons to enter appearance  were signed  by the court on 3rd October  2014 and that by an affidavit  sworn by one Amos Chege a process server on    13th October 2014 and filed in court on 14th October 2014, the process server effected service of  summons to enter appearance together with an order of 29th September 2014 on 4th October  2014 upon the defendants and that the defendants being aggrieved they filed an  application dated  8th October 2014 seeking  to discharge  those orders. That  the defendants  also filed their  Memorandum of Appearance  on 8th October 2014  through their  advocate  and that  a notice of  appointment   filed on 21st May  2015  cannot replace  a Memorandum of Appearance  since the two documents  are  provided for  under different  provisions  of the law i.e. Order  9 Rule 7  and Order  6 Rule 1 respectively  and that the said documents serve different  purposes  and that  the latter  document- notice of appointment of advocates cannot succeed the Memorandum  of Appearance.  Further, that having filed Memorandum of Appearance in response to the summons to enter appearance, under Section 17 and 18 of the Evidence Act, there is an admission on behalf of the defendants by their agent/advocate, of such service of summons to enter appearance.  In addition, it was submitted that if at all there was no such service of summons to enter appearance; there has been no challenge to the affidavit of service sworn and filed by the process server, who has not even been summoned for cross examination.  The plaintiff therefore urged the court to find that the summons to enter appearance was served   within time and that the suit had not abated and dismiss the preliminary objection with costs.

11. On the question  of whether  the court  can enlarge  the time/period  of validity of the  injunctive  orders  it  was submitted that  the matter  herein relates  to church leadership dispute  and that time had to be given for  attempts to amicably resolve  the dispute.  That the court should be cautious and disregard baseless allegations of violence against non parties to the suit.  That the formation of the tribunal is not denied and that there is no dispute that an injunction restraining formation of the tribunal was issued by the lower court.

12. It was submitted that enlargement of the validity of the injunctive orders is a discretionary power and that it was justifiable in the circumstances.  That the plaint had to be amended and credible evidence   gathered to prepare for the hearing which led to delay.  That no prejudice would be suffered if the injunctive  orders are enlarged/validated.  The plaintiff relied  on the case of Stephen  Kiatu Nganga V Stanley Kinduga & Another CA 441/2012 where this court  addressed  itself on the issue   of discretion and opined  that there is need  to  consider the totality of circumstances  and the  entire  history of the  case. The  plaintiff  also prayed for costs and dismissal of the preliminary  objection.

13. In their  opposing  submissions  dated 30th November 2015, the 1-9th ,12th and 13th defendants(the (respondents’) counsel  submitted that in the first  place, there is no order  to be extended  as the order of 4th December  2014  had lapsed  on 4th April 2015 and that under the law the court  cannot extend a non existent  order.  Reliance  was placed on  the decision by Honourable  Justice  Mutungi  inNSSF V John Ochieng Opiyo [2006] e KLR  where the Learned Judge stated that:

“ However, I need to address the issue  of this court  validating  the order which has lapsed.  I know  of no law under which  an issue   which has  died/lapsed/expired can be  validated  other than  under the order referred  to herein above.  The court cannot validate orders, which upon expiry, have ceased  to exist.”

14. The defendant’s counsel also  referred  this court to the case   of Karachi Walla Nairobi Ltd V Sanji  Van Mukherhjee [2015] e KLR where  Honourable F. Ochieng J stated that:

“ J Kamau J  made the  following  observation when determining  that application: courts have  wide and  unfettered  discretion to enlarge  time  to allow  parties to do certain  acts  where time  limitation have been  given and  to proceed d to determine  matters  without  undue  regard  to  technicalities  as provided in Article  159(2) (d)  of the Constitution of Kenya, 2010.  However, courts have to be careful when balancing this discretion  by considering  the consequences  of  certain acts which  are not  done  within the stipulated  period, in particular, where  there are  express and clear provisions of the law regarding  those  time  lines.” I am in complete agreement with pronouncement  of my learned  sister.  But I also pause to indicate  that in the case at  hand, there  was no question about any provisions of law that  governed the  time lines in relation to the orders  which the  defendants was seeking  an extension of.  It is the court  which fixed the period within which  the defendant  should have  made available  the security which  was required as a foundation upon which the order for  stay of execution would be  anchored……..application to extend order dismissed.”

15. The defendants urged the court to  be guided by the above decision  and dismiss  the application by the  plaintiff on that ground alone.  The defendants nonetheless  proceeded  to submit that there  was no reason at all to extend  the  order and that any extension would amount to gross abuse of  the court  process since litigation must come to an  end and parties should  not litigate  on a matter  forever.

16. It was further submitted that there  was no evidence  to show that evidence  was being  collated. Further,  that the plaintiff was insincere  as there  was no additional list of  documents  filed hence  the excuse is  an afterthought.

17. In addition, the defendant’s  counsel  submitted that  there was inordinate  and inexcusable  delay and  indolence  on the part of the plaintiff  seeking to enlarge  time when  the same was lapsing.  That the  delay  was deliberate and mischievous.

18. In their  further submissions responding to the plaintiff’s  submissions, the defendants’ counsel contended that  the purpose  of the 120 days  timeline given by the court was to set the suit down for hearing and  not for  purposes of  reconciliation  through a Church Tribunal.  That  the tribunal was for another church  faction  and that  the defendants  had never  been summoned to any mediation or reconciliation  process  or meeting.

19. It was further  submitted that there  is no supporting evidence  to the application since the deponent  died and that  there  had been no proper  substitution  of the deponent  of the supplementary  affidavit in respect of  the application  and that  if the court  was to  order for  cross-examination of the deponent, who would the plaintiff present for such cross-examination?

20. It  was further submitted by the defendants’ counsel that it is not  equitable  to extend  those injunctive orders  since the  plaintiff sat on the  orders granted and only approached  the court on the eve of the  lapse of the orders  with an  application to extend  the same.

21. Further, that the defendants  will be highly prejudiced if  the orders  were to be  reinstated  or validated.  That the defendants  had of course   not filed  defence  and cannot file  defence unless  they are served with summons  to enter appearance  and that there is no moral or legal reason  why the  defendants  should continue  to shoulder  orders  in this matter.

22. Submitting on their preliminary objection  dated 21st May 2015, the defendants  opposed the entire suit  on the  grounds that  the same abated  as the defendants   were never  served with summons to enter appearance  and that the filing  of Memorandum of  Appearance  was  erroneous  which error  the defendants’  advocate  rectified  by filing a  notice of appointment  of advocates. That the process server’s affidavit at paragraph 2 does not disclose service of summons to enter appearance.

23. Further, that there is a contradiction in the affidavit  of service  sworn on 17th September  2014 by Amos Chege  Kanoga  and the paragraph  4 of the plaintiff’s submissions that summons to enter appearance  were duly signed on  3rd October  2014  and every party to the  suit served on        4th October  2014.  On the whole  it was submitted  by the  defendant’s counsel that no summons  to enter appearance were collected  and or  served and that  if there  is any  other affidavit of service on  record  other than the one  of 17th September  2014, it should be investigated.  The defendant’s counsel also  submitted that it  was over  one  year  and no summons  had ever been taken  out and or  served from the date of  filing suit  hence there was no  suit in place.  That  the suit abated  and is therefore fit for striking out.  Reliance  was placed  on the case  of Terry Wanjiku Kariuki V Equity  Bank Limited  & Another [2012] e KLR  where the court held that issuance  of and service of summons  to enter appearance go to the jurisdiction  of the court  and failure  thereof  to comply cannot be cured by  Sections 1A and 1B of the Civil  Procedure Act.  And that  the court  was dealing with both failure to  issue and to serve summons to  enter appearance. Reliance was also  placed on Kenya Commercial Bank  Ltd V Kenya  Planters Co-operative  Union Civil Application Nairobi 85/2010 where it was held that

“ where  there  is a conflict  between the Statute ……Objective  Principle) and a Subsidiary  Legislation ( Rules  of the court) the  statute  must prevail.  Although  the rules  have their value and shall continue  to  apply subject  to being Oxygen  compliant, the Oxygen  principle is not there  to fulfill   them but to supplant  them where  they  prove to be a hindrance  to the Oxygen  or attainment  of justice and fairness in the circumstances of each case.”

24. The defendants  prayed that the court do dismiss the application and allow the preliminary objection.

25. I have  carefully considered the application by the plaintiff/applicant, the preliminary objection  raised, rival submissions and the authorities  cited which include statute law. In my  determinations, it is  now settled  law and practice that where a  preliminary objection is raised then that preliminary objection must  first be  determined, especially where such determination  is likely to dispose of the suit  or  matter at  hand without  going  into the merits.

26. A preliminary objection  is a point of  law when taken would dispose of the suit.  It is  what was formerly  called  a “demurrer.”  The case of Mukisa Biscuits Manufacturing Company Ltd V West  End Distributors  Ltd [1969] EA 696 is the locus classicus on preliminary objections. That case defined a preliminary objection as follows :

“ 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.  The first  matter  relates to the increasing practice of raising   points, which should be  argued in the normal manner, quite  improperly  by way of preliminary objection……………………..A preliminary  objection…….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 discretion.  The improper  raising of points by  way of preliminary objection  does  nothing but  unnecessarily increase costs  and, on occasion, confuses the issue.  The improper  practice should stop…..”

27. In the instant  case, the preliminary  objection raised by the defendants  is that the suit  herein has abated  for want of issue  and  service of summons to enter appearance.  Further, that there  is no injunctive order  on record  capable of being  extended  or validated and that therefore  the application is an  abuse of the court process.

28. The first question  under the preliminary objection  is whether  the suit herein  has abated.

29. According   to the defendants, from  the time  this suit  was instituted  on 15th September 2014  upto and  until the time of  hearing of this application, no  summons to enter appearance had  been collected and served upon  them which was  over one  year hence the  suit has abated.  On the other hand, the plaintiff  asserted  that summons to enter appearance  were served  upon the defendants and that it is for that  reason that the defendants  promptly filed  Memorandum of Appearance and  response  to the application dated 15th September, 2014 and that they  also filed  an application under certificate of urgency seeking to discharge  the interim ex`parte orders issued   by the court in the first instance.

30. Although the plaintiff annexed  an affidavit  of service  sworn  on 17th September 2014  by Amos  Chege sworn to prove that he had served summons upon  the defendants, that assertion  was countered  by the contention  that if the  summons  were issued  on 3rd October  2014, then there was no way the same summons  could have been served on 17th September 2014.  Further, that the  said affidavit  of Amos  Chege  Kanoga does not depose  to the process server having  effected  service of summons to  enter appearance upn the defendants.

31. I have examined the affidavit  of service  sworn on 17th September 2014  and filed by Amos Chege  Kanoga.  It is indeed  a fact that  he does not  mention therein the issue of service  of summons  to enter appearance  upon any of the defendants to this suit.  The process server only mentions having  received and served  copies of certificate of urgency, notice of motion, plaint and its  annexture  all dated  15th September 2014  from the plaintiff’s advocate’s  firm to  serve the same  upon the defendants for  hearing on  23rd  September 2014.

32. That  being the case, and coupled  with the fact that  the summons to enter  appearance  were issued  on 3rd October, 2014  after the service of  the application under certificate of urgency together with the plaint, it cannot be time true that  summons to enter appearance which had not been issued  by 19th September  2014 could have been  served upon the defendants.

33. However, a meticulous perusal of the  record, with the  plaintiff’s  submissions  indicating that summons were  served upon the defendants  on 4th October  2014, I came  across an affidavit  of service sworn by Mr  Amos  Chege  Kanoga  sworn on 13th October  2014 and filed in  court and  indeed  paid for vide receipt No.6213094  for shs  75/-. At paragraphs  2,3,,4,5,6,7,8,9-15 of that affidavit of service sworn on 13th October 2014 the process server deposes  that he  on 4th October 2014  received copy of summons to enter appearance dated  3rd October 2014, plaint and its annextures, application under certificate  of urgency, court order dated 29th September 2014, Notice of Penal consequences and hearing notice dated 30th September 2014 from  the firm of Mbiu Kamau &  Company Advocates  with instructions to  serve the same  upon the  defendants  herein requiring  them to attend court  on 16th October  2014  as per court  order dated 29th  September  2014  extracted  from the  aforesaid  application.  That he proceeded to the respective places explained in the affidavit and traced each of the defendants   and served them but that they declined to sign   on his copy   which he returned.

34. The defendant’s counsel in his submissions doubted that there was any other affidavit of service other than the one of 17th September 2014.  Further, that his clients were not  served with summons to enter appearance and that  if there is  any such affidavit  sworn on 13th October  2014 and  filed on 14th October  2014  then it should  be investigated.

35. I have meticulously examined the record herein and the place where that affidavit of service sworn on 13th October 2014 is filed.  There is nothing that would suggest to this court that the affidavit in question was a fraud.  It is possible that the defendant’s counsel never saw it but it is on record and it has not been challenged.  I am satisfied on examining  that affidavit  of 13th October  2014  that the defendants were duly served  with summons to enter  appearance  issued on 3rd October  2014  and that  it is upon such service of  summons to enter appearance  upon the defendants that  they duly instructed their  advocates  Kinyanjui Kirimi & Company Advocates to enter an appearance  on their behalf on 8th October 2014  by filing a Memorandum of Appearance.   For that  reason  there is no justification whatsoever for the defendant’s counsel to purport  to disown the Memorandum  of Appearance  dated  8th October  2014 and further purport to  replace it with subsequent  Notice of Appointment  of Advocates dated 21st May 2015 accompanying a replying affidavit  to  this application.  In my view, that  action by the defendants and their advocates  on record is  an afterthought.  It is  unacceptable  and  only goes to reveal an act of  ingenuity  and dishonesty on the part of  the defendants and their advocates.  I say dishonestly and an afterthought  because in the 1st defendant’s  affidavit  sworn on 8th October 2014 at paragraph 7, he deposed that he had  since  become aware( after  service on Saturday 4th October, 2014  at 7pm) that on      26th September  2014  this court issued  an order against  the defendants.  The affidavit  of service sworn by Amos Chege Kanoga clearly  stated that  he had effected summons  to enter appearance  dated 3rd October  2014  and the  order of  26th September 2014 among other documents upon  the defendants on 4th October  2014.  The fact that  the defendants  and their advocates did not  see the  affidavit of  service  sworn  on       13th October 2014 which affidavit was duly filed and paid for does not mean  that the  affidavit is nonexistent  or that  it is not genuine without laying any basis for such conclusions.

36. The  only inference  that this  court can make out of the conduct  of the defendants disowning  their own Memorandum of Appearance  which  was  duly filed and served upon  the plaintiff’s advocate is that upon their realization that they had defaulted to file defence  to the plaintiff’s claim even after   being served  with summons to enter appearance, they wanted to divert  the  attention of  this court and  that of the plaintiff.

37. It is  for the above reasons  that I find and hold that there  was no breach of Order 5  Rule 1 (b) of  the  Civil Procedure  Rules by the plaintiffs  since the suit  was filed  on  15th September  2014 and summons to enter appearance  issued on 3rd October  2014 and collected  and served upon the defendants on 4th October  2014 which was  within 30 days of  filing suit.  Further, albeit  the defendants claim that  one year had lapsed  since the suit  had been filed without summons to enter appearance  being  served, that argument  cannot stand  the test of times, not  even for  academic purposes.

38. Accordingly, I find that the  suit herein as filed is  alive and that summons to enter appearance  were  issued on 3rd October  2014 and served  on 4th October  2014  within one month  from the date of filing of suit.

39. Even assuming that the  summons to enter appearance as issued on 3rd October, 2014 were not  served as  alleged, but that as the  record  clearly shows, the defendants  did file  the Memorandum of Appearance dated 8th October  2014, the question is, would the suit  herein have abated  by the time this preliminary  objection was filed?  To answer  that question, it is  important to first set out the purpose of summons  to enter appearance.

40. The purpose of summons to enter appearance is to inform  a defendant  of the institution of a suit.  If  a defendant  files a  Memorandum  of Appearance, it is deemed to have had  due notice of the  institution of such suit.  In  this case, therefore, the defendant  having filed  Memorandum of Appearance  on 5th October  2014 signifying their  intention to defend the suit they are deemed to have  had  notice of institution of such  suit and therefore their  purported  disowning  of their Memorandum of  Appearance  and the explanation thereof  falls flat  on its face  and must  be rejected.  Further, the filing  of notice of  appointment  of advocates subsequently filed  was of no consequence.  It is  irrelevant  and a technical  gimmick or theatrical  maneuver  intended to defeat  the ends of  justice  which technicality is abhorred  by Article 159(2) (d) of the Constitution.  I am fortified  by the decision in Equatorial Commercial  Bank Ltd V Mohan Sons (K) Ltd [2012] e KLR where the Court of Appeal, citing other Court of Appeal decisions  including Nanjibhai Prabhudas & Company Ltd V Standard Bank Ltd  [1968] EA (K) 670stated:

“…….we definitely appreciate  and agree that the object and scope of summons to enter  appearance  is to make  the  defendant aware of the suit  filed against  him and to afford  him time  to appear  and follow the process  of law.”

41. In this case, that aim of summons to enter appearance was achieved  since there  was an unconditional appearance and participation in the proceedings which constituted  voluntary  and complete waiver  of any defect  that could have affected  the summons. In Nanjibhai Prabhudas & Company Ltd case, the Court of Appealheld, inter alia that:

“Even if  the service of the  summons  was defective, the defect constituted  an irregularity capable  of being  waived  and  did not  render  the service  a nullity.

Any irregularity in the service had been waived  by the defendant  by entering an appearance and  by delay  in bringing the application  to hearing:” Sir Charles Newbold at page 681 and 682 stated:

“ The defendant entered  an  appearance in the High Court  and  took out  the motion which is the subject  of this appeal in the  High court; and  it was not  until at a very late stage that  it  was noticed  that the seal  was an incorrect  seal.  This shows  how technical  is the objection and  it also  shows that this  incorrect  act in no way prejudiced  the  defendant. The question then is, did that  incorrect action  result  in the service   being a nullity?  The courts should   not treat   any incorrect  act  as a nullity, with the  consequences  that everything  founded  thereon  is itself a nullity, unless  an incorrect  act is  of a most  fundamental  nature.  Matters of procedure are not normally of a fundamental nature.”

42. Albeit  the above decision concerned  an incorrect seal on summons to enter appearance  and made  before the  2010 Constitution, the decision  was cited in  the Equatorial Commercial Bank  Ltd (supra) decided  in 2012, where the Court of Appeal extensively approved the Prabhudas (supra)case and  further  quoted it at page  684.

“ In my view, where a  defendant chooses  to enter an  unconditional  appearance in proceedings  in the court, he must be taken , save  in exceptional circumstances  such as  where he  contemporaneously  files  a notice of  motion to set aside  the proceedings to which he  has entered  an appearance, to have waived any irregularity in the process  to which he enters an  appearance  and thus accepts  the jurisdiction of the court.  Any statement  to the contrary by MACDUFF J, in the Jethalal case (supra) is an incorrect  statement  of the law  and should not  be followed.” I consider that the defendant has, by entering  an unconditional  appearance, waived this right to  object  to the two irregularities to which I have referred.  I also  consider  that  in as much as these  two irregularities  have clearly  not prejudiced the defendant  in any way he has not  shown good  reason why the  service of the summons  should be set aside  on the ground  of those  irregularities  and, accordingly, I would not set it aside.”

43. From the above Court of Appeal decisions whose principles  I adopt as binding  on this court, I would further invoke the provisions of Section 120 of the Evidence Act Cap 80 Laws of Kenya, the principle  of estoppel as being applicable  in the circumstances of this  case.  The  section provides that :

“ When  one person has , by his  declaration , act or omission, intentionally  caused or permitted  another person to believe a thing  to be true  and to act upon  such belief, neither he nor his  representatives shall be allowed, in any suit or proceeding between himself and such person or his  representative , to deny the truth of  that thing.”

44. In this case, the defendants who were legally represented  throughout, filed a memorandum of appearance to the summons, appeared and unconditionally participated in the proceedings, filed an application seeking to discharge the exparte orders of injunction granted to the applicant herein in the first instance under certificate of urgency. They cannot now be heard to recant and  challenge  the whole process  on the ground that they  were never  served with summons to enter appearance  and that  in any event  the whole suit  has abated, which recant, as I have  stated, is a procedural, theatrical gimmick and technical maneuver  by the defendants intended to obstruct the cause of justice.  This is a court  of justice, and it cannot be caged  by rules of procedure   which will  cause hardship and injustice  to the parties.( See Githere V Kimunge [1976-1985] EACAK 101 at page 103.

45. The  defendants, furthermore, have not shown what prejudice they  would suffer  in law or  in equity having entered  appearance  voluntarily assuming they were  not served with summons to enter appearance, having  made the plaintiff  believe that  they had been served with  summons to enter appearance and having ably participated in the proceedings hereto only to wake up after it dawned on them that they had not filed defence, to raise technical objections to the plaintiff’s entire suit, contrary to the overriding objectives of the law  as espoused in sections 1Aand 1B of the Civil procedure Act and the spirit and letter of Article 159 of the Constitution that courts shall administer justice without undue regard to procedural technicalities, which procedural technicality in this case does not go to the root or substance of the suit as explained above.

46. Before  I conclude, I must mention  that the  authorities relied on by the defendant’s counsel  are  all High Court decisions which are not  binding  on this court, however  persuasive  they  are.  The Kenya Commercial Bank  Ltd V Kenya  Planters Co-operative  Union(supra) case on the other hand though of the  Court of Appeal has no relevance  to  the issue of service of  summons to enter appearance championed in this case.

47. There  was also serious contention by the defendants’ counsel that  there  was no supporting  evidence to the application as the deponent  of the supporting affidavit  had since died while the  proceedings herein(application ) was  pending hearing   and determination.

48. First, I have examined the provisions for enlargement/extension  of time  and I have  not come across  any  provision that  the application  must mandatorily  be supported  by an affidavit  or affidavit  evidence.  The application had grounds supporting it  and in my view, even without  an affidavit, this court has the power to extend time in the interest of justice, where such time is sought even on an oral application. Nonetheless, there was a valid affidavit in support thereof and therefore the submission that supposing there was need to cross examine the deponent who is dead is pure speculation since no man or woman in their normal senses would wish to cross examine a dead witness.

49. Secondly, the argument that where a deponent dies then their evidence given by such deponent is no evidence is not supported by any rule or legal provision.  If that were to be the case, majority of the cases would abate on the death of witnesses who have already testified.

50. Third, is that the suit  was  instituted  in the name of the Board of Trustees of the  AIPCA Church not in the name of the deponent  who was one of the trustees  of the church.  It has also not been shown that the deceased Timothy Gachoya was  the only Trustee of the Church.  This court finds that  the death of a deponent does not invalidate  the affidavit  sworn by that deponent  and therefore the  argument that supposing  such deponent  was to be  cross- examined  is speculative  and demeaning  of the deceased  deponent since there  was no such  application  for cross examination of the said Mr Timothy Gachoya who died  while this application  was pending  hearing and   determination.  The argument  by the defendants only goes to show how   this dispute  has escalated  to the extent  that  it is following the dead  into their graves to disturb their peace even when the dead tell no tales.

51. In the end, I find the preliminary objection rose on the non-service of summons to enter appearance upon the defendants unmerited, mischievous, frivolous and vexatious and proceed to dismiss it.

52. On the second important  issue of whether the court can  enlarge the period of validity  of the conditional injunctive  orders made  on  4th December 2014, the defendants seriously contended  that there is no order to be extended; no reasons have been advanced  to  warrant  extension of the order; no evidence being collated  was shown; there is  inordinate  delay in seeking  for extension; that  the purpose of 120 days  was  to set down the suit for  hearing and  not to set up a church  tribunal to resolve the dispute; that  there  is no supporting evidence  to the application  since the  deponent  to the application Mr Timothy Gachoya  died  before determination of the application; and finally, that it is inequitable to  extend  those orders.

53. In my view, the main question  to be  answered  on the second  issue is whether  a conditional time  bound injunction can  be extended  beyond the time  set and or whether  an injunction  order which has lapsed can  be revived  and or  validated  and  extended  and if so, whether  the plaintiff/ applicant has proffered to this court sufficient  reasons why the injunctive  orders  issued on 4th December  2014 and  which lapsed  on 4th April 2015 before this application was filed should  be extended  as contemplated in order  40 Rule 6  of the Civil  Procedure Rules.   It should be noted   that the application herein for extension of time was lodged on 27th March, 2016 before the expiry of the said injunction on 4th March, 2016.  Under  Order 40 Rule 6 of the Civil Procedure  Rules,

“ where a suit in respect of which  an interlocutory injunction  has been granted  is not  determined  within a period   of twelve  months  from the date of the grant, the  injunction shall lapse  unless for  any sufficient  reason the court  orders otherwise.

54. In the instant case, as at the time this application was lodged, twelve months had not lapsed and have only lapsed while this application was pending.

55. Under Section 59 of the Interpretation and General Provisions  Act, Cap 2 Laws of Kenya, it is provided that:

“ Where  in a written  law time  is prescribed for doing an act or  taking proceedings, and power is given to a court or other authority  to extend that time, then unless a contrary intention  appears, the power  may be exercised  by the  court or other authority although  the application for extension is not made  until after the expiration  of the time prescribed.”

56. The above provisions of the law empower this court to extend time for doing any act prescribed even when the application for extension of time is made after the time prescribed by the Rules   or by the order of the court has expired.  The provisions  of Section 59 of Cap 2 is what appears  to be replicated by Order 50 Rule  6 of the Civil Procedure Rules which provides that:

“ where a limited time  has been  fixed for doing act or taking  any proceedings under these Rules  or by summary notice  of the court, the court shall  have power to enlarge such time  upon such terms  (if any) as the justice of  the case may require, and such enlargement may be  ordered  although the application  for the same  is not made until after the expiration of  the time  appointed or allowed, provided that the costs of any  application to extent  such  time and  of any order made  thereon shall be  borne  by the parties making  such application  unless the court orders otherwise.”

57. In addition, Section 95  of the Civil Procedure  Act is  clear that:

“ where  any period  is fixed  or granted  by the court for the doing of any act prescribed  or  allowed by the act, the court may, in its discretion, from time to time, enlarge  such period even though  the period  originally fixed or granted  may have expired.”

58. From the above provisions of the law, it is trite that the power to enlarge or extend time for doing any act which time is fixed by the court can be exercised by the court in its discretion, even if that time has lapsed.  The provisions of the law as cited above recognize that first, there must have been original time fixed and which time has either expired or is about to expire. Being a matter of discretion for the court, in granting such enlargement of time, the court will consider the circumstances of each case, which vary from case to case.  Some factors to be considered  include:

Whether there has been indolence or unexplained delay on the part of the applicant.

Whether the applicant is guilty of abuse of the court process.

Whether the enlargement will prejudice the defendant.

Whether the denial of enlargement period will occasion prejudice to the applicant given the circumstances of the case.

Whether the enlargement is necessary for the effectual complete adjudication of the   issues in controversy.

Whether it is just and fair to enlarge time in the circumstances of the case.

59. It therefore  follows that  once   the court is persuaded  that it is in the interest  of justice  to enlarge  time, it  will  exercise  its unfettered  discretion  in favour  of the applicant and impose  terms and conditions  if any on  which it  will  allow  the enlargement, besides  an award of costs to the respondent  as espoused in the  proviso to Order 50 Rule 6  of the Civil Procedure Rules, to ensure that  the respondent is not  unfairly  prejudiced by such enlargement.

60. Even where there is a default clause in the orders made by a court, time can still be enlarged.  This position  was  considered  by the Court of Appeal  in the case of  Caltex Oil (K) Limited  V Rono Civil Appeal/Application  Nairobi No. 97/2008 (unreported)  where the  Court of Appeal  said in part:-

“However, the fact that a default clause has been imposed by a court does not necessarily deprive a court of its jurisdiction to extend time.  As a  general  principle, where the  court fixes  time for  doing a thing  it always  retains  the power to extend  time for doing the act until  it has  made  an order  finally disposing  of the proceedings  before it.  It seems that the main test is whether the court still remains in control of the order, not withstanding   that there has been default.  That would necessarily depend on the true construction of the default clause.”

61. In this case, no doubt the orders of  injunction granted on 4th December  2014 automatically lapsed  upon the plaintiffs  failure to cause the suit to be heard and determined within one year as per the statutory provisions of Order 40 Rule 6 of the Civil Procedure Rules and secondly, the non fulfillment of the condition  stated  in Order No. 3  made pursuant to the Order of 4th December, 2014 that :

“………this injunctive  order is conditional  upon the plaintiff  expediting the process  of readying of  the suit for hearing and  disposal  within 120 days from the date  hereof failure to which the  temporary  injunction herein  shall lapse.”

62. The period of 120 days ended on 4th April 2015 by which time, the case had not been reached for hearing and disposal hence the serious opposition to this application by the defendants/respondents, who filed their response after such lapse of the one year from the date when the injunctive orders were made on 4/12/2014.

63. The plaintiff’s explanation  for  the delay hence the  lodging  of this application on 27th March  2015  is that there  were attempts  to have the  dispute herein which  involves church leadership resolved  through appointment  of a church tribunal but that  the defendants again went to the  lower court  and injuncted  the  operationalization of  the said  church tribunal.  Further, that the plaintiff   had to amend the plaint as annexed to the supporting affidavit and that even then, to date the defendants had not filed any defence to the suit herein.

64. It must be  made clear  that from the order of  4th December 2014, the interlocutory  injunction  did not  provide a  time frame   within which  the suit   should be  heard and  determined  but the process of  readying the case  for trial  which process   includes  compliance  with the mandatory provisions  of Order 11 of the Civil Procedure Rules  on pre-trial requirements  and directions  being  given certifying the suit as  ready for trial.  In other words, the default clause was not intended to limit the duration within which the suit should be heard and determined.  Rather, it  was  intended to limit the  duration  of the orders of injunction  by making the duration of the orders dependent on the fact of readying  of the suit for  hearing  and disposal to 120  days from the date of issue  of the order on 4th December  2014, and to accord with Order  40 Rule  2(2)  of the Civil Procedure Rules.

65. As stated earlier, this court still retains   the control of the dispute herein until the suit is heard and fully determined.  The court is not functus officio as regards the default clause. The application for  extension of the  orders made  on  4th December  2014   was lodged  before  the said  orders lapsed by operation of law, and  reasons have been given for the delay.

66. In my view, it is  logical and reasonable  to consider  an  amicable  settlement  of disputes  of this  nature involving church leadership and therefore  although  the 120 days given  was not specified for establishment  of a church tribunal, and whereas parties cannot  be compelled to  resolve  their disputes amicably, this  court is mandated under  Article 159 of the Constitution  of Kenya 2010 to promote  the use of  alternative dispute resolution mechanisms. Indeed, from the onset of this dispute, this  court has always  implored  parties to this church  dispute  to explore  amicable avenues  for the  resolution of the ever escalating  dispute  which involves  church  leadership in an amicable manner  but it has not been  possible for  the parties to concede to resolve the dispute  amicably.  The fact that  there  was an attempt to establish  a tribunal by the  church to attempt to resolve  this dispute  is in my view, a step in the right direction, in my  view,  since every order of  this court  only  appears to be tearing  the AIPCA Gatanga church  apart  and not helping  in resolving  the dispute which is  a very unfortunate scenario.  Therefore, in my view, the  delay in readying the suit herein  for hearing is reasonably  explained and which explanation  is acceptable to the court as it has not been denied that there  was resistance  to the establishment  of the said church tribunal.

67. Further,  the fact that the defendants  have to date  not filed  any defence  in view of my findings  that they were properly served  with the summons  to enter appearance on 4th October  2014  leaves  many questions  unanswered.  That means  that pleadings  in this case  are still open  for the defendants  to seek leave to file their  defence  out of time  to facilitate   disposal  of this dispute  in an  expeditions manner, now that the plaintiff only amended its plaint on 27th March, 2015.

68. Sections 1A of the Civil Procedure Act is clear that the overriding objective of the Act and the Rules there under is to facilitate the “just proportionate and affordable resolutions of disputes governed by the Act.”And Section 1A (2 )  of the said Act  enjoins the court in the  exercise  of its powers under the Act or in the interpretation of  any of its provisions, to seek to  give effect to the overriding objectives  specified  in subsection (1).  Subsection 3 thereof  declares  that a party to civil proceedings or an  advocate for such  party is under a duty to assist the court  to further  the overriding objectives of the Act  and, to that  effect, to participate  in the  process of  the directions and  orders of the court.  On its part, Section 1B (1) of the Act  obliges  the court in the furtherance of  the overriding  objectives  specified  in Section 1A to handle  all matters  presented before it  for  the purposes of attaining the  following aims:

The just determination of proceedings.

Efficient disposal of the business of the court.

The efficient use of the available judicial and administrative resources.

The timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

69. In this case, the injunctive  orders granted on 4th December 2014  were  about to lapse  when the  application herein was  filed and  as at now, they have  indeed  lapsed pursuant  to the provisions  of Order 40 Rule 6  of the Civil Procedure  Rules  since the suit has not been  determined within 12 months  from  the date  of  grant of the injunction.  But the same Order and Rule allows for extension for sufficient reasons. In this case, I find that there has not been compliance with Order 11 of the Civil Procedure Rules which is mandatory in nature.  Further, the defendants have not filed their defence. Out  of the aims of the  overriding objectives is the need  to ensure  equality of  arms, the principle of proportionality  and the need  to treat  all  parties  coming to court  on equal  footing.  Such power and discretion must however be exercised judiciously and for sound reasons.

70. In the instant  case, and  at this  point in time, the grounds upon  which the  interlocutory injunction  was initially granted have  from the rival positions  placed  before this court, not  changed.  The only question is whether the lapsed injunctive order should be reinstated.  Considering  the  positions  of the applicant ( trustees  of the AIPCA Church) and the  defendants who are church  worshippers /faithful  seeking to change  the leadership  of the AIPCA church and to assert their  rights  to worship and or minister  in that church( Gatanga Diocese)  and considering  that  there is a strained relationship between the plaintiff and the defendants, the ends of justice dictate  that the suit be determined  on its merits  after hearing of  all the parties , unless they heed to the pleas  of the court that   they embrace  mediation and or conciliation  and record settlement  on terms.  This is so for reasons  that indeed, if the orders  sought  enlarging  the injunctive  orders are not granted  maintaining  status quo, the  substratum of  the suit herein, which the injunctive  orders  were preserving would be lost  since the defendants  who are still under suspension of the embattled  top church leadership have not  received  any reprieve  and neither  have they challenged  their suspension by way of a counterclaim to this suit.  The purpose of the injunction is to conserve and preserve the subject matter pending   hearing and determination of the suit (See George Orango V George Liewa Jagola & 3 others [2010] e KLR.And in Ougo & another Vs Otieno [1987] e KLR 364 the Court of Appeal held   inter alia, that    “where   there are serious conflicts of facts, status quo should be maintained until the dispute has been decided at the trial.”This, however, is not to sanction a suit to  remain  archived in  court in perpetuity, for public  policy demands  that justice  must be  administered  without undue delay( see Article  159 2 (b) of the Constitution) and  FitzPatrick V Batger & Company Ltd [1967] 2  ALL ER 657.

71. In the  instant case, and as  it had  not been demonstrated  that the  plaintiff has no  interest in prosecuting the suit, or that  the defendants are  in any way prejudiced by the  injunction since they are serving suspension  which they have not challenged, and as  no misconduct  of the plaintiff has been demonstrated, I find  no reasons  why I should not  extend the injunctive  orders made on 4th December  2014 and  hereby  extend  the said order   for a further 12 months  from the  date hereof.

72. I also exercise my discretion and order that the defendants be and are hereby granted leave of 14 days from the date hereof to file and serve their statement(s) of defence upon the plaintiff’s counsel.  Both parties shall comply   with all the pretrial requirements under Order 11 within 45 days from the date when pleadings close.  This matter shall be mentioned on 17th May 2016 to confirm compliance with pretrial requirements.

73. Each party shall bear their own costs of the application and the preliminary objection, this being a church dispute.

Dated, signed and delivered   in open court at Nairobi this 14th day of March 2016.

R.E. ABURILI

JUDGE

14/3/2016