Foundation Ministry Church-Kitui & another v Mailu & 3 others [2022] KEHC 397 (KLR)

Foundation Ministry Church-Kitui & another v Mailu & 3 others (Civil Case E002 of 2022) [2022] KEHC 397 (KLR) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 397 (KLR)

Republic of Kenya

In the High Court at Kitui

Civil Case E002 of 2022

RK Limo, J

May 6, 2022

Between

Foundation Ministry Church-Kitui

1st Applicant

James Mwendwa Maweu

2nd Applicant

and

Nicholas Muoki Mailu

1st Respondent

Michael Ndambuki

2nd Respondent

Stephen Musembi

3rd Respondent

Elkanah Mogire

4th Respondent

Ruling

1. Before this court is an urgent application dated 28th April 2022 brought by way of Notice of Motion by the Plaintiffs/Applicants. They are seeking the following prayers: -i.Spentii.Spentiii.That this application be heard before the hearing of another application slated for 11th May 2022 because the prayers sought are extremely urgent and may be overtaken by events due to the actions by the respondents.iv.That pending the hearing and determination of this application, this court be pleased to issue an order of injunction restraining the respondents herein by themselves, their agents or anyone acting under their instruction or any other person whether or not sent by the respondents, from accessing and/or trespassing on the piece of land known as Kyangwithya/Kaveta/2136. v.This Hon. Court be pleased to issue an Order of Injunction restraining the Respondents by themselves, their agents or anyone acting under their instructions or any other person whether or not sent by the respondents from carrying on worship and church related activities in the sanctuary constructed by Jesus for Life Foundation Ministry Church on Parcel of Land Known as Kyangwithya/Kaveta/2136 being the property of the said church in the name of El-Bethel Victory Church.vi.That pending the hearing and determination of this application an Order of this court does issue against the respondents compelling them to immediately restore the Jesus for Life Foundation Church Poster near the entrance of the said Church Premises.vii.That Pending the hearing and determination of this application, the Respondents be ordered to remove from the entrance of the Jesus for Life Foundation Ministry Church the Poster of El-Bethel Victory Church.viii.That pending the hearing and determination of this application, the Respondents be ordered to immediately restore the Facebook page wall of Jesus for Life Foundation Ministry by removing the name of El-Bethel Victory Church name and restoring the name of Jesus for Life Foundation Ministry.ix.That the Respondents be ordered to return/surrender the church title documents to the applicant’s lawyer.x.That the Officer Commanding Police Division (OCPD) do effect and supervise compliance with the orders of this Hon. Court.xi.That costs be provided.

2. The applicants have listed twelve grounds in the face of the application which they have interestingly listed from (g) to (s) it is not clear why the applicants have not begun the grounds in the usual alphabetical order from letter (a) going forward but that is not the issue in this application. I will as such leave it at that.

3. The applicants have stated in their grounds that they have a pending application dated 20th April 2022 where they are seeking to be allowed to access the church premises with a view to carrying out worship activities and to have respondents restrained from disrupting or causing chaos during church services at ‘‘Jesus for Life Foundation Ministry Church.’’

4. This court will not go into the details of the other grounds raised by the applicants for reasons that; will give shortly. Suffices to state this application has been opposed by the respondents through a replying affidavit sworn by Nicholas Muoki on 5th May, 2022.

5. I will also not go into the details of the grounds upon which the respondents have opposed this application for the same reasons alluded above.

6. The substantive prayers (4,5,6, 7 and 8) as sought in this application are not tenable because they are anchored on the pendency of this application which means that they cease immediately this application is determined. This is because the said prayers are couched or premised on the determination of ‘‘the hearing and determination of this application’’ and not either the application dated 20. 04. 2022 or the main suit. The omission by the applicants in my considered view renders the said prayers (4,5,6,7 & 8) defective and incompetent.The omission is not a mere technicality because there is no prayer in this application seeking preservertory orders or any other relief pending the hearing and determination of either the application dated 20. 04. 2022 and/or the entire suit. The provisions of Order 2 Rule 1 & 6 of the Civil Procedure Rule provide that a party is bound by his pleadings and under Order 51 of Civil Procedure Rule a party should clearly list the prayers sought and state in general terms the grounds upon which an application is premised. This is meant to accord the opposing party a fair chance to respond.

7. It is quite apparent that the applicant may have been taken by surprise by the defendants’ action and out of haste drafted this application without noticing that is anchored on air literally because the way it is framed or couched its lifespan ends immediately I pronounce myself on this application which in itself defeats the purpose of approaching this court in the first place.

8. Furthermore, a look at Prayer 9 shows that the same is rather premature at this stage because the matter can only be determined after the full trial where the evidence will be tabled in court and interrogated.

9. It is evident that the applicants were jolted into action perhaps by further actions of the defendants after this court had given directions on 26th of April, 2022 with respect to the pending application dated 20. 04. 2022. The prayers in that application as correctly pointed out by the respondents are similar to the instant application and all what the applicants were required to do was to file another Certificate of Urgency urging this court to fast-track the hearing of that application given the circumstances they may have cropped up thereafter.In the end and for the reasons advanced above this court finds the application dated 28. 04. 2022 fatally defective and incompetent. Sadly, I have no other option other than to strike it out because in a court of law and to use the biblical context given the character of the parties herein you cannot ask for bread and expect to be served with anything other than what you have prayed/asked for. This application is struck out but I will not make any order as to costs at this stage.

DATED, SIGNED AND DELIVERED AT KITUI THIS 6TH DAY OF MAY, 2022. HON. JUSTICE R. K. LIMOJUDGE