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ELRCDismissedPetition dated 2nd January, 2021· [2023] KEELRC 2457 (KLR)

Kirundu v Pentecostal Assemblies of God Kenya & another (Petition E008 of 2021) [2023] KEELRC 2457 (KLR)

Employment and Labour Relations Court
5 October 2023
MNMathews N. Nduma
1,961 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court dismissed a founding pastor's challenge to his retirement because he named no violated constitutional right and skipped the church's internal dispute process.

What this practically means

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Executive summary

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The petitioner, a founding Pastor of Rongai PAG Church who established it in 1999, petitioned the Employment and Labour Relations Court challenging his retirement from ministry effective 29th November, 2020. He sought declarations that his retirement without due procedure was illegal and unconstitutional, a permanent injunction restraining the respondents from interfering with the running of the church, exemplary damages for breach of legitimate expectation and emotional distress, a refund of approximately Kshs. 4 million he claimed to have invested in the church with interest, and costs. He asserted he had served for over 30 years, was not accorded a dignified send-off, and that other pastors past 65 years remained in service. The respondents, through the overseer of Kibera District, showed that by PAG Kenya Bye-Law No. 2.4 the retirement age is 65; the petitioner, born 15/1/1951, was notified by letters dated 11/7/2016 and 25/8/2020, and a district committee meeting resolved to accord him a dignified send-off. The court framed two issues: whether the petitioner established a violation of his constitutional rights, and whether he was entitled to the reliefs sought. Applying Anarita Karimi Njeru v Republic, the court found the petition disclosed no specific right or freedom under the Bill of Rights. It held the retirement was lawful, with adequate notice, that the petitioner had not exhausted the church's internal dispute resolution machinery under Article 22 of the PAG Constitution, and that matters of worship and access to the church fell outside its jurisdiction. The petition was dismissed as misconceived and an abuse of process, with each party bearing its own costs.

Key legal issues

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01

Whether the petition disclosed a violation of constitutional rights

Holding

The petition did not identify any provision of the Bill of Rights alleged to have been violated and therefore disclosed no cause of action

Reasoning

Applying the Anarita Karimi Njeru principle, the court found the petition made no reference to any provision of the Constitution of Kenya, 2010, any statutory law, or any statute of the Church. Without expressly disclosing the threatened, denied or violated rights and fundamental freedoms, the petition disclosed no cause of action justifying relief.

p. 4
02

Whether the retirement of the petitioner was lawful

Holding

The retirement was lawful as the petitioner had attained the mandatory retirement age of 65 years under the Church's Bye-Laws and was given adequate notice

Reasoning

The petitioner admitted being born on 15/1/1951 and did not deny the Church's policy retiring clergy at 65. He was notified by letter dated 11/7/2016 (over six months' notice) and by letter dated 25/8/2020 (at least three months' notice), which he attached to his own application and did not expressly deny receiving.

p. 4
03

Whether the petitioner exhausted the Church's internal dispute resolution mechanism

Holding

The petitioner provided no evidence that he had exhausted the dispute resolution machinery in the PAG Kenya Constitution before approaching the Court

Reasoning

Article 22 of the Pentecostal Assemblies of God – Kenya Constitution (1998) bars members and pastors from taking church disputes to Court without first exhausting internal dispute resolution. The court found no evidence of such exhaustion and treated the petition as premature and an abuse of process.

p. 5
04

Whether the Court had jurisdiction over matters of worship and access to the Church

Holding

Matters of worship and access to the Church fall outside the Court's employment and labour jurisdiction

Reasoning

The court held that the issues of the petitioner's and his family's worship and access to the Church were not employment and labour matters, and while denial of access would be an indictment on the Church, the court declined to pronounce further on them.

p. 5

Legal principles established

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  • A petitioner must expressly disclose the specific rights and fundamental freedoms under the Constitution that have been threatened, denied or violated as the basis of the cause of action
  • Disputes within a church must first exhaust the internal dispute resolution machinery provided in the church's constitution before resorting to Court

Court orders

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  1. 1.The petition is dismissed
  2. 2.Each of the parties to bear their own costs of the petition
Jurisdiction invoked
Employment and labour relations jurisdiction under the Constitution of Kenya, 2010; petition brought under Article 22(1)

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, "Kirundu v Pentecostal Assemblies of God Kenya & another (Petition E008 of 2021) [2023] KEELRC 2457 (KLR)", Case Analysis (2023). Petition dated 2nd January, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2457/eng@2023-10-05

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