Automated Summary
Key Facts
Reverend Hudson Jumba sued the Pentecostal Assemblies of God (Ngara Church) and others, seeking a permanent injunction to prevent their interference with his pastoral appointment from November 28, 2004. He requested arbitration under the church's 1998 constitution (Articles 23-26) to resolve disputes. The defendants were represented by Makhandia & Makhandia Advocates, which the plaintiff challenged as unauthorized under the church's constitution (Article 12(1)). The court dismissed the plaintiff's preliminary objection, ruling the defendants' authorization of the 8th defendant to swear the replying affidavit was valid under legal procedure.
Issues
- The plaintiff challenged the firm of Makhandia & Makhandia & Co. Advocates' authority to represent the First Defendant, arguing it violated Article 12 (1) of the Pentecostal Assemblies of God, Kenya Constitution 1998, which designates the General Superintendent as the official church representative. The court dismissed this preliminary objection, ruling that the firm's appointment was valid and that the plaintiff's argument conflated legal and factual issues.
- The plaintiff argued the Replying Affidavit (and a subsequent affidavit) were invalid as they contravened the Oath and Statutory Declarations Act and Order XVIII Rule 6 of the Civil Procedure Rules. The court rejected this, stating the 8th Defendant had co-defendants' authorization to swear the affidavit and that factual disputes about organizational roles could not be resolved via preliminary objection.
Holdings
- The court also dismissed the objection regarding the defective swearing of the Replying Affidavit. It held that the 8th defendant had the authority of the co-defendants to swear the affidavit, and such authorization is valid under the law. The court emphasized that factual matters, like the deponent's position in the organization, cannot be raised as preliminary objections.
- The court dismissed the plaintiff's preliminary objection that the firm of Makhandia & Makhandia & Co. Advocates was not legally authorized to represent the defendants. It held that the firm was duly instructed to act for the defendants and that the plaintiff cannot dictate who should represent the defendants, as the firm's appointment was properly on record.
Remedies
For the reasons stated above the plaintiff's Preliminary Objection is dismissed with costs to the defendants.
Legal Principles
The court dismissed the plaintiff's preliminary objection on the grounds that issues regarding the authorization of legal representation and the validity of affidavits were factual matters, not legal points, and thus could not be raised as preliminary objections. The ruling emphasized that procedural authorization by multiple defendants for a single deponent to swear an affidavit on their behalf was valid under the circumstances.
Cited Statute
- Civil Procedure Rules
- Societies Act
- Oath and Statutory Declarations Act
Judge Name
J.L.A. OSIEMO
Passage Text
- what position a party holds in an organization is a point of fact and not a point of law and once evidence is required to prove an issue, it ceased to be a point of law and becomes a point of fact and hence outside an issue to be raised as a Preliminary Objection.
- The firm of Makhandia & Makhandia & Co. Advocates was duly instructed to act for the defendant and it is properly on record. The second issue raised by the plaintiff is the swearing of the Replying Affidavit.
- For the reasons stated above the plaintiff's Preliminary Objection is dismissed with costs to the defendants.