REPUBLIC OF KENYA

Tanui & 4 others v Birech & 11 others

Court of Appeal, at Nairobi
October 17, 1991

Gachuhi, Cockar JJ A & Omolo Ag JA

Civil Application No NAI 107 of 1991

(Being an appeal from the Ruling of the High Court at Nairobi, Githinji J,

dated 24th May 1991 in Civil Case No 1338 of 1991)

Civil Practice and Procedure – injunction - application for an injunction pending appeal - matters the court will consider in such application.

Societies - churches, colleges and clubs - involvement of the courts in matters to do with the business of societies - circumstances and manner in which the courts may intervene in such matters - ecclesiastical law.

The applicants sought an injunction restraining the respondents from proceeding with elections to fill the canonically vacant post of Bishop for the See of Eldoret. They contended that the Diocesan Chancellor and the Electoral College had no jurisdiction to conduct the election by reason of article X of the Church’s constitution.

The High Court at the first instance granted the prayers sought ex-parte but discharged the same after an inter-partes hearing.

In the appeal against the High Court’s decision, the appellants argued that if the elections were allowed to go on, it would cause disunity in the entire church as, he alleged, the appellants represented a large number of lay church members.

Held:

1. The principles on which the court acts when considering an application for an injunction pending appeal are, first the appeal should not be frivolous and second, the court should ensure that the appeal if successful should not be nugatory.

2. While it is not the business of the High Court or the Court of Appeal to involve itself in the day to day running of institutions such as the church, colleges, clubs and so on, yet where it is shown that such an organization is conducting its affairs in a manner contrary to its constitution and to the detriment of its members, then the High Court and the Court of Appeal would not only be entitled to but under a duty to compel it, either by injunction or otherwise, to obey its constitution.

3. Even if the elections were to go on, the applicants would still have a remedy because they could still challenge the validity of the elections.

4. To grant the applicants the injunction they sought would be to paralyse the operations of the church and this the court ought not to do.

Application dismissed.

Cases

1. Muge, In Re [1991] KLR 51; [1988-1992] 2 KAR 205

2. Githunguri v Jimba Credit Corporation Ltd (No 2) [1988] KLR 838

3. Nyongesa & 4 others v Egerton University College [1990] KLR 692

4. Shitakha v Mwamodo & 4 others [1986] KLR 445; [1982-88] 1 KAR 965

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b)

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 2, 9

Advocates

Dr Khaminwa for the Applicants.

Equity - equitable remedies - specific performance - matters the courts will consider in granting such remedy. Land Law - sale of land - rescission of an agreement for sale on account of the purchaser failing to complete the transaction on time - purchaser seeking specific performance - whether time was of the essence - whether both parties to blame for not completing the transaction - whether order of specific performance properly given.

Evidence – dying declaration – evidential weight of a dying declaration - whether corroboration is necessary to support a conviction.

Civil Practice and Procedure - appeals – notice of appeal – copies to be served on all persons directly affected by the appeal. Civil Practice and Procedure – parties to appeal – whether proper to pray for an order directed at a person who is not a party to the suit.

Criminal Law – possession of false documents – whether court can infer knowledge of falsity of document on the accused. Evidence – rebuttal - whether prosecution must rebut every imaginable possibility.

Succession – Probate and Administration – grant of letters of administration – number of administrators where there is a continuing trust – Succession Act (Cap 160) section 58.

Carriage By Air – carriers liability – commencement of liability in respect of an airline passenger – article 17 Warsaw Convention and Carriage by Air Act. Carriage By Air – requirements of article 17 of the Warsaw Convention – once met the burden shifts on the airline to prove the contrary.

Civil Practice and Procedure – stay of execution pending appeal – power of the High Court to grant stay - appeal against the decision of the High Court - whether right of appeal exists as of right or should be preceded by an application for leave.