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Court of AppealPartially AllowedCivil Appeal No. 93 of 2015

Paul Auma Orwa & another v Registrar of Societies & 4 others [2016] KECA 463 (KLR)

Court of Appeal
2 June 2016
3,667 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal quashed a church constitution amendment because the process excluded a faction and ignored the church's own amendment rules.

What this practically means

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Executive summary

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This is a unanimous judgment of the Court of Appeal at Kisumu (Maraga, Musinga and Gatembu Kairu, JJ.A) allowing in part an appeal against the High Court's dismissal of a judicial review motion. The appellants, leaders of a faction of the African Israel Nineveh Church, had sought certiorari to quash the Registrar of Societies' approval of a new constitution for the Church, prohibition against interference with Church affairs, and mandamus compelling the Registrar to convene a stakeholders' meeting and call a referendum. The sole issue was whether the process leading to the Registrar's approval of the new constitution accorded with the law. The Court held that although the Registrar had power under section 19 of the Societies Act to intervene, he was bound to follow due process, beginning with the amendment procedure prescribed in the Church's own constitution. The Registrar's correspondence revealed that the Archbishop's faction was not represented on the constitutional review committee, no minutes of the committee's meetings were availed, and there was no evidence of how the committee or its chairman were appointed. The High Court's finding that all warring factions were represented was unsupported by the evidence, and its conclusion that the appellants were aggrieved by the outcome rather than the process was erroneous. The Court set aside the High Court judgment and substituted an order allowing prayers 1 and 3 of the motion; prayer 2 was not granted. Each party was ordered to bear its own costs in the High Court and on appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the process of amending the constitution of the African Israel Nineveh Church accorded with the law and was free of procedural impropriety
  2. 2.Whether the learned Judge of the High Court erred in holding that there was no procedural impropriety in that process and in dismissing the appellants' application for judicial review

Key legal issues

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01

Whether the amendment of the Church's constitution complied with the law and the Church's own constitution

Holding

The Registrar's approval of the new constitution was vitiated by procedural impropriety: the committee that produced the constitution was not constituted in accordance with the Church's amendment procedure, and the Archbishop's faction was not represented.

Reasoning

The Registrar had statutory power under section 19 of the Societies Act to require a society to amend its constitution, but in exercising that power he was bound to follow due process. He should have begun by having regard to the amendment procedure in the Church's own constitution. There was no evidence of the membership, origin or manner of appointment of the review committee, and no minutes were availed. The Archbishop's faction was admittedly not represented on the committee. The process was therefore neither fair nor inclusive.

p. 6
02

Whether the High Court Judge erred in finding that all factions were represented and in dismissing the judicial review motion

Holding

The Judge's conclusion that all warring factions were represented was unsupported by the evidence; his dismissal of the motion was erroneous and was set aside.

Reasoning

The material before the High Court consisted of the Registrar's correspondence, which on its face showed that the Archbishop had not presented membership for the committee by the letter of 26th September 2013. There were no minutes establishing who sat on the committee or how it was appointed. On that material the finding that all factions participated could not stand, and the Judge's conclusion that the appellants were aggrieved only by the outcome rather than the process was contrary to the evidence.

p. 6

Legal principles established

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  • When the Registrar of Societies exercises the statutory power to require or oversee amendment of a society's constitution, the starting point must be the amendment procedure prescribed in the society's own constitution, and the process must be procedurally fair and inclusive.
  • A judicial review applicant is entitled to certiorari where the decision-making process was tainted with procedural impropriety, irrespective of the merits of the decision.

Court orders

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  1. 1.The appeal is allowed and the judgment of the High Court is set aside
  2. 2.An order allowing prayers 1 and 3 of the appellants' notice of motion dated 9th January 2014 is substituted for the High Court judgment
  3. 3.Each party shall bear its own costs of the proceedings in the High Court and of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Kisumu
HC JR No. 26 of 2013
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court in judicial review proceedings

Relief refused

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Prayer 2 of the notice of motion dated 9th January 2014 (an order of prohibition prohibiting the respondents from interfering with the affairs of the Church)

The Court substituted an order allowing only prayers 1 and 3 of the motion; prayer 2 was not among the orders granted.

p. 6

Costs

Each party shall bear its own costs of the proceedings in the High Court and of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We accordingly allow the appeal and set aside the Judgment of the High Court and substitute therewith an order allowing prayers 1 and 3 of the appellants’ notice of motion dated 9th January 2014.
p. 6Final orders – substitution of orders allowing prayers 1 and 3
Each party shall bear its own costs of the proceedings in the High Court and of the appeal.
p. 6Costs order
In our view, the Registrar did not act with procedural fairness towards ensuring that the process of amending the constitution of the Church was fair and inclusive.
p. 6Procedural fairness in the exercise of the Registrar of Societies' statutory power
In our view, the beginning point for the Registrar should have been to have regard to the procedure for amendment as set out in the constitution of the Church that was to be amended.
p. 6Duty to follow the society's own amendment procedure
The conclusion reached by the learned Judge that all “the warring factions were represented” in the process is not supported by the evidence.
p. 6First appellate court's assessment of the evidence before the High Court

Issues in the judgment

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minor

The third respondent's name appears inconsistently in the judgment: the coram lists 'MATHIAS ABWODHO' while the replying affidavit deponent is 'Mathias Obwotho'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Auma Orwa & another v Registrar of Societies & 4 others [2016] KECA 463 (KLR)", Case Analysis (2016). Civil Appeal No. 93 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/463/eng@2016-06-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.