1. Vide a Notice of Motion application dated 16th April 2026, the Applicant herein sought the following orders:-
(a) THAT the present motion be certified urgent and directions as to its hearing on a priority basis be given(spent)
(b) THAT pending the final determination of the Applicant's Application dated 19.01.2025 now pending before the Honourable Court, the Honourable Court be pleased to grant an Order staying, and/or suspending the execution and /or implementation of the Order issued by the Chief Magistrate's Court dated 26/7/2025.
(c) THAT, the purported meeting of the African church of the Holy Spirit scheduled for 21 /4/2026 at Chepkumia Nandi County, under the auspices of an illegality, changed name of the church and the leadership of non-sanctioned officials be suspended pending the final determination of the present application.
(d) THAT, the costs of the application be provided for.
2. The application was supported by grounds on its face and the supporting affidavit of the applicant, Alex Misigo, who avers that they are registered trustees of the African Church of the Holy Spirit authorized to deal with the church finance and properties. He avers that the church instructed the national chairman to file a civil case, No. E206 of 2023, based on corruption in the church by John Akhura and his allies, in their failure to comply with the church constitution.
3. He states that on 22nd February 2024, the Chief Magistrate in suit no E026 of 2023 ordered the church to exercise its constitutional power to resolve the dispute by appointing a task force committee, and that the 1st Respondent, who was the plaintiff in case No. E026 of 2023 and chaired the task force meetings as instructed by the court order against the 2nd Respondent, John Akhura.
4. According to the Applicant, the chair, who is the 1st Respondent, was compromised by the 2nd Respondent, John Muhambe Akhura, to join him by stating that he had withdrawn the 1st case E026 of 2023 and that the application for judicial review of the said ruling John Akura, the 2nd Respondent lost, and filed a High Court civil appeal No. E054 of 2024 was already determined, and a judgment was delivered.
5. In his affidavit, he states that the National Chairman, Simon Rugut Kibet; who is the 1st Respondent, did not tell the church how it could recover the money that John Akura had defrauded the church and further failed to inform the church leaders how they could reinstate the constitutionally ordained leaders that had been replaced by John Muhambe. He claims that the 1st Respondent, Simon Rugut, had abused his position as the national chairman, which led the committee to sue him jointly with the 2nd Respondent in Kakamega Civil Case No. E174 of 2025, which the court issued an order dated 30th June 2025, which had not yet been challenged.
6. He states that this court in High Court Civil Appeal No. E054 of 2024 delivered a Judgment on 5th March 2025 which has not yet been challenged, and that the Chief Magistrate at Kakamega, in MCCC Case No E174 of 2025 issued an order dated 30th June 2025 for a temporary injunction against the Respondents from interfering with the management of the church, an order that he has not been challenged.
7. He avers that the court in MCCC case No. 174 of 2025 issued an order dated 3rd July 2025 on the same case after 3days, which application was not filed, and the same court ordered a mediation between the two parties where the Applicants claimed that the Respondents were corrupt by asking the church members to give Kshs. 500 instead of the Kshs. 200 approved by the executive committee and further replacing the ordained constitutionally approved church bishops with their own.
8. He now prays that the court issues a stay of execution against the orders issued on 22nd February 2024 in the Chief Magistrate’s Court at Kakamega Civil Suit No E026 of 2023 in line with the order issued on 15th January 2025 in the High Court of Kenya at Kakamega civil appeal No E054 of 2024 issued on 30/6/2025.
9. He prays that the court set aside the order issued on 26th July 2025 or be struck out for causing a lot of damage in church and being self-contradictory.
10. In their replying affidavit dated 22nd April 2026, the 1st Respondent, who swore the affidavit on behalf of the 2nd Respondent, states that he is the National Chairman of the African Church of the Holy Spirit.
11. He states that the Applicants are not entitled to the orders sought in the application since they are not the current leaders of the church and that they work under the direction of the High Priest Rev. John Muhambi Akhura, the 2nd Respondent as per their church constitution, and that the church is currently under the leadership of the 2nd Respondent. He denies the allegation of fraud and corruption and states that the church finances are handled by the Church Treasurer.
12. He denies that there were any funds lost under the current leadership of the church and states that they are operating in peace with no violence. In relation to the planned youth meeting in Nandi County, he claims that it was properly organised with the church leadership and obtained a proper licence. He prays that the current application be dismissed as it is disrupting the church's activities and denies the allegation that they changed the logo of the church.
13. He denies the allegations that the mediation orders allow the church leaders to operate outside the church constitution as alleged by the Applicants.
Applicant’s Submissions
14. The 1st and 2nd Applicants filed their submissions dated 11th May 2026, arguing that the application was based on Article 165 of the Constitution, which established the supervisory role of the High Court to ensure that the subordinate courts are within the ambit of the law to ensure the Subordinate Courts Act.
15. On the first issue with regard to MCCC Case No E174 of 2025 between the church of the Holy Spirit and Simon Kibet Rugut and Another, they submit that where a subordinate court exceeds its jurisdiction by exercising the power of a mediator outside the court premises and gives an order dated 26/7/2025. He claims that the order was made without any party appearing before the court and there was no pending application duly served to warrant issuance of the orders, stating that it was an abuse of judicial authority.
16. They invoked the supervisory authority of the High Court under Article 165 (6) against the subordinate court, praying that the orders be struck out for being irregularly issued.
17. On the replying affidavit by Simon Kibet Rugut, he faulted the respondent, stating that he did not state whether he was present when the orders dated 26/7/2025 were issued or if he had made an application, stating that none of the parties had made an application for which the orders made on 26/7/2025 were issued. In finality, he prays that the court calls for the lower court record to find out if the said order 26/7/2025 was solicited for and the same was a creation of the trial court in the absence of the application and ought to be quashed.
Respondent’s Submissions
18. The Respondents filed the 13th May 2026 oppose the application to adopt the mediation settlement agreement by Senior Principal Hon. Z.J Nyakundi in MCCC No. E174 of 2025.
19. The Respondents claim that they adopted the wrong procedure in approaching court, claiming that if they were aggrieved they were to appeal at the higher court instead of invoking the court’s supervisory jurisdiction. They further contend that the application is fatally defective and ought to be struck out.
20. They claim that the present application was founded on an earlier application dated 15th September 2025 which they claim was incompetent as it was attempting to challenge the lower court authority to adopt the mediation settlement through a constitutional petition.
21. They claim that the Applicants lacked locus standi as they lacked the authority from the church leadership to institute the proceedings and further that the applicants did not have the mandate to litigate on behalf of the Church.
22. They invoked the doctrine of exhaustion of internal dispute resolution mechanisms as the church’s constitution provided the mechanism for resolving leadership disputes internally before going to court.
23. On the merits of the dispute, they claim that the orders sought by the Applicants were negative orders incapable of being executed
24. On the merits of the dispute, the Respondents contend that the orders challenged by the Applicants are merely negative orders, incapable of execution and therefore not amenable to challenge in the manner proposed. They further submit that the mediation settlement adopted by the subordinate court simply reflected the parties' agreement to withdraw all pending cases and resolve the church leadership dispute in accordance with the church constitution.
25. The Respondents maintain that the mediation agreement conferred no special advantage upon any party. Instead, it provided equal opportunity for all parties to participate in the leadership of the church through peaceful consultations in accordance with the church constitution. They therefore reject the Applicants' allegation that the settlement infringed any constitutional rights.
26. They finally submit that the Applicants have brought the application in bad faith by litigating matters that have been resolved through mediation and urge the court to dismiss the application for lack of merit.
Analysis and Determination
27. I have had the opportunity to look at the notice of motion application dated 16th April 2026, the replying affidavit as well as the rival submissions. The main issues for determination are:-
i. Whether the applicants have met the requirement for a stay of the orders by Hon. Nyakundi on 26th July 2025.
ii. Whether the court should exercise its supervisory jurisdiction under Article 165(6) and (7) of the Constitution.
iii. Whether the doctrine of exhaustion of remedies and locus standi bar the current Application.
28. The Applicant contends that the Hon. Nyakundi issued orders on 26th July 2025 without any pending application. They state that the trial court acted outside its jurisdiction and they have now approached this court seeking that the court exercises its supervisory jurisdiction under Article 165 over the subordinate court to stay or suspend the execution of the orders issued on 26/7/2025.
29. The application is anchored upon Article 165(6) and (7) of the Constitution. The Applicants contend that the subordinate court issued orders on 26th July 2025 without any pending application, without parties appearing before it and outside the scope of its jurisdiction. They therefore invite this court to call for the subordinate court record and quash the impugned orders.
30. Article 165(6) of the Constitution states that "The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court."
31. Article 165(7) states that: "For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice."
32. From the above assessment, Article 165 gives the High Court the supervisory jurisdiction to ensure that the lower court exercises its mandate procedurally and according to the law. It is, however it not an avenue where a party that has been aggrieved can circumvent the appeal process because it was dissatisfied with the court’s decision.
33. In Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] KEHC 6532 (KLR) the court stated that supervisory jurisdiction is exercised sparingly and only where there is demonstrable excess of jurisdiction, breach of the rules of natural justice or patent procedural irregularity.
34. The Applicants herein have argued that the orders by Hon. Nyakundi dated 26th July 2025 were given suo moto as none of the parties in the application were present when the orders were given. The concerns raised by the Applicant are serious and would require this court to look into and address them as it speaks to procedural propriety by the trial court. Both the parties have to confirm that the allegations raised are indeed as stated.
35. The Applicants fault the trial court for referring the matter to Mediation and adopting the Mediation Agreement without the parties’ consent.
36. From the record, the Advocates for both parties were present in Court on 15/7/2025 when the court referred the matter to Mediation. The Court’s action was perfectly within its mandate and was firmly anchored in the law under Article 159 (2) (2) of the Constitution, Section 59 (1) (b) and Order 26 Rule 2 of the Civil Procedure Rules and Rule 5 (1) of the Civil Procedure (Court Annexed Mediation) Rules.
37. Additionally, the parties’ Advocates were present on 26/8/2025 when the trial court adopted the impugned Mediation Settlement Agreement. Suffice to say, any aggrieved party had the opportunity to lodge the appropriate application, under the Court Annexed Mediation Rules, to set aside the Mediation Settlement Agreement. In the circumstances, the application for revision is misconceived.
38. The Respondent claims that the Applicant should have addressed their grievances through an appellate court instead of seeking the High Court to exercise its supervisory duty over the subordinate court.
39. In MNN v JMM (Miscellaneous Application E024 of 2021) [2022] KEHC 12488 (KLR) (Family) (27 May 2022), the High Court at Milimani addressed the issue of the Superior Court’s supervisory jurisdiction as stated under Article 165(6), by stating that the superior court cannot assume unlimited jurisdiction to correct every perceived wrong decision. It stated that supervisory jurisdiction should be used sparingly where there is a flagrant abuse of power or lack of jurisdiction. It stated that it is not an alternative route of appeal to a dissatisfied litigant.
40. The jurisdiction to grant a stay is discretionary and must be exercised judicially upon established principles. He must establish that there will be substantial loss, he must provide security and that the application was filed without unreasonable delay.
41. The Applicant has not demonstrated how the ruling issued on 26th July 2025 will be executed or create a state of affairs warranting a stay order, as the court had adopted the mediation settlement.
42. In Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya (Civil Application 133 of 2015) [2015] KECA 353 (KLR) (2 October 2015), Justice Kantai, J stated that:- “An order for stay of execution is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance presupposes the existence of a situation to stay – called a “positive order” – either an order that has not been complied with or has partly been complied with. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated:
….. an order for stay of execution must be intended to serve a purpose …..”
Following that approach of looking at the nature of the orders even before delving into the said principles in a Rule 5(2) (b) application, the Court has identified negative orders as orders that are incapable of execution. Consequently, an order for stay of execution cannot be issued in respect of such an order. That was the position in Executive Estates Limited v Kenya Posts & Anor. [2005] 1 E.A. 53 where it was stated: …… The order which dismissed the suit was a negative order which is not capable of execution ……”
43. If the orders issued on 26th July 2025 were an adoption of mediation settlement, it cannot be described as an executable decree that is capable of being suspended until the orders imposed are enforceable.
44. I do note that the dispute before the court relates to the leadership of the church, which falls squarely within the internal governance of the church constitution, unless there is an exceptional circumstance that would warrant this court to intervene.
45. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, Justice PJ Otieno stated that:- “With the dispute resolution clause in the churches’ constitution, I do find that this matter, when filed, was premature and contrary to the principle of exhaustion or ripeness. I find that the court’s jurisdiction has been ousted and when so ousted the court lacks jurisdiction to deal with it. The court, in these circumstances, downed its tools by striking out the matter to enable the parties to go to their ordained forum.”
46. From the above analysis, it is my finding that the Notice of Motion application dated 16th April 2026 lacks merit and it is therefore dismissed. Since the matter involves members from the same church, and in order to prevent further disintegration of the body of Christ, there shall be no order as to costs.
47. It is so ordered.
(a) THAT the present motion be certified urgent and directions as to its hearing on a priority basis be given(spent)
(b) THAT pending the final determination of the Applicant's Application dated 19.01.2025 now pending before the Honourable Court, the Honourable Court be pleased to grant an Order staying, and/or suspending the execution and /or implementation of the Order issued by the Chief Magistrate's Court dated 26/7/2025.
(c) THAT, the purported meeting of the African church of the Holy Spirit scheduled for 21 /4/2026 at Chepkumia Nandi County, under the auspices of an illegality, changed name of the church and the leadership of non-sanctioned officials be suspended pending the final determination of the present application.
(d) THAT, the costs of the application be provided for.
2. The application was supported by grounds on its face and the supporting affidavit of the applicant, Alex Misigo, who avers that they are registered trustees of the African Church of the Holy Spirit authorized to deal with the church finance and properties. He avers that the church instructed the national chairman to file a civil case, No. E206 of 2023, based on corruption in the church by John Akhura and his allies, in their failure to comply with the church constitution.
3. He states that on 22nd February 2024, the Chief Magistrate in suit no E026 of 2023 ordered the church to exercise its constitutional power to resolve the dispute by appointing a task force committee, and that the 1st Respondent, who was the plaintiff in case No. E026 of 2023 and chaired the task force meetings as instructed by the court order against the 2nd Respondent, John Akhura.
4. According to the Applicant, the chair, who is the 1st Respondent, was compromised by the 2nd Respondent, John Muhambe Akhura, to join him by stating that he had withdrawn the 1st case E026 of 2023 and that the application for judicial review of the said ruling John Akura, the 2nd Respondent lost, and filed a High Court civil appeal No. E054 of 2024 was already determined, and a judgment was delivered.
5. In his affidavit, he states that the National Chairman, Simon Rugut Kibet; who is the 1st Respondent, did not tell the church how it could recover the money that John Akura had defrauded the church and further failed to inform the church leaders how they could reinstate the constitutionally ordained leaders that had been replaced by John Muhambe. He claims that the 1st Respondent, Simon Rugut, had abused his position as the national chairman, which led the committee to sue him jointly with the 2nd Respondent in Kakamega Civil Case No. E174 of 2025, which the court issued an order dated 30th June 2025, which had not yet been challenged.
6. He states that this court in High Court Civil Appeal No. E054 of 2024 delivered a Judgment on 5th March 2025 which has not yet been challenged, and that the Chief Magistrate at Kakamega, in MCCC Case No E174 of 2025 issued an order dated 30th June 2025 for a temporary injunction against the Respondents from interfering with the management of the church, an order that he has not been challenged.
7. He avers that the court in MCCC case No. 174 of 2025 issued an order dated 3rd July 2025 on the same case after 3days, which application was not filed, and the same court ordered a mediation between the two parties where the Applicants claimed that the Respondents were corrupt by asking the church members to give Kshs. 500 instead of the Kshs. 200 approved by the executive committee and further replacing the ordained constitutionally approved church bishops with their own.
8. He now prays that the court issues a stay of execution against the orders issued on 22nd February 2024 in the Chief Magistrate’s Court at Kakamega Civil Suit No E026 of 2023 in line with the order issued on 15th January 2025 in the High Court of Kenya at Kakamega civil appeal No E054 of 2024 issued on 30/6/2025.
9. He prays that the court set aside the order issued on 26th July 2025 or be struck out for causing a lot of damage in church and being self-contradictory.
10. In their replying affidavit dated 22nd April 2026, the 1st Respondent, who swore the affidavit on behalf of the 2nd Respondent, states that he is the National Chairman of the African Church of the Holy Spirit.
11. He states that the Applicants are not entitled to the orders sought in the application since they are not the current leaders of the church and that they work under the direction of the High Priest Rev. John Muhambi Akhura, the 2nd Respondent as per their church constitution, and that the church is currently under the leadership of the 2nd Respondent. He denies the allegation of fraud and corruption and states that the church finances are handled by the Church Treasurer.
12. He denies that there were any funds lost under the current leadership of the church and states that they are operating in peace with no violence. In relation to the planned youth meeting in Nandi County, he claims that it was properly organised with the church leadership and obtained a proper licence. He prays that the current application be dismissed as it is disrupting the church's activities and denies the allegation that they changed the logo of the church.
13. He denies the allegations that the mediation orders allow the church leaders to operate outside the church constitution as alleged by the Applicants.
Applicant’s Submissions
14. The 1st and 2nd Applicants filed their submissions dated 11th May 2026, arguing that the application was based on Article 165 of the Constitution, which established the supervisory role of the High Court to ensure that the subordinate courts are within the ambit of the law to ensure the Subordinate Courts Act.
15. On the first issue with regard to MCCC Case No E174 of 2025 between the church of the Holy Spirit and Simon Kibet Rugut and Another, they submit that where a subordinate court exceeds its jurisdiction by exercising the power of a mediator outside the court premises and gives an order dated 26/7/2025. He claims that the order was made without any party appearing before the court and there was no pending application duly served to warrant issuance of the orders, stating that it was an abuse of judicial authority.
16. They invoked the supervisory authority of the High Court under Article 165 (6) against the subordinate court, praying that the orders be struck out for being irregularly issued.
17. On the replying affidavit by Simon Kibet Rugut, he faulted the respondent, stating that he did not state whether he was present when the orders dated 26/7/2025 were issued or if he had made an application, stating that none of the parties had made an application for which the orders made on 26/7/2025 were issued. In finality, he prays that the court calls for the lower court record to find out if the said order 26/7/2025 was solicited for and the same was a creation of the trial court in the absence of the application and ought to be quashed.
Respondent’s Submissions
18. The Respondents filed the 13th May 2026 oppose the application to adopt the mediation settlement agreement by Senior Principal Hon. Z.J Nyakundi in MCCC No. E174 of 2025.
19. The Respondents claim that they adopted the wrong procedure in approaching court, claiming that if they were aggrieved they were to appeal at the higher court instead of invoking the court’s supervisory jurisdiction. They further contend that the application is fatally defective and ought to be struck out.
20. They claim that the present application was founded on an earlier application dated 15th September 2025 which they claim was incompetent as it was attempting to challenge the lower court authority to adopt the mediation settlement through a constitutional petition.
21. They claim that the Applicants lacked locus standi as they lacked the authority from the church leadership to institute the proceedings and further that the applicants did not have the mandate to litigate on behalf of the Church.
22. They invoked the doctrine of exhaustion of internal dispute resolution mechanisms as the church’s constitution provided the mechanism for resolving leadership disputes internally before going to court.
23. On the merits of the dispute, they claim that the orders sought by the Applicants were negative orders incapable of being executed
24. On the merits of the dispute, the Respondents contend that the orders challenged by the Applicants are merely negative orders, incapable of execution and therefore not amenable to challenge in the manner proposed. They further submit that the mediation settlement adopted by the subordinate court simply reflected the parties' agreement to withdraw all pending cases and resolve the church leadership dispute in accordance with the church constitution.
25. The Respondents maintain that the mediation agreement conferred no special advantage upon any party. Instead, it provided equal opportunity for all parties to participate in the leadership of the church through peaceful consultations in accordance with the church constitution. They therefore reject the Applicants' allegation that the settlement infringed any constitutional rights.
26. They finally submit that the Applicants have brought the application in bad faith by litigating matters that have been resolved through mediation and urge the court to dismiss the application for lack of merit.
Analysis and Determination
27. I have had the opportunity to look at the notice of motion application dated 16th April 2026, the replying affidavit as well as the rival submissions. The main issues for determination are:-
i. Whether the applicants have met the requirement for a stay of the orders by Hon. Nyakundi on 26th July 2025.
ii. Whether the court should exercise its supervisory jurisdiction under Article 165(6) and (7) of the Constitution.
iii. Whether the doctrine of exhaustion of remedies and locus standi bar the current Application.
28. The Applicant contends that the Hon. Nyakundi issued orders on 26th July 2025 without any pending application. They state that the trial court acted outside its jurisdiction and they have now approached this court seeking that the court exercises its supervisory jurisdiction under Article 165 over the subordinate court to stay or suspend the execution of the orders issued on 26/7/2025.
29. The application is anchored upon Article 165(6) and (7) of the Constitution. The Applicants contend that the subordinate court issued orders on 26th July 2025 without any pending application, without parties appearing before it and outside the scope of its jurisdiction. They therefore invite this court to call for the subordinate court record and quash the impugned orders.
30. Article 165(6) of the Constitution states that "The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court."
31. Article 165(7) states that: "For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice."
32. From the above assessment, Article 165 gives the High Court the supervisory jurisdiction to ensure that the lower court exercises its mandate procedurally and according to the law. It is, however it not an avenue where a party that has been aggrieved can circumvent the appeal process because it was dissatisfied with the court’s decision.
33. In Director of Public Prosecutions v Perry Mansukh Kansagara & 8 Others [2020] KEHC 6532 (KLR) the court stated that supervisory jurisdiction is exercised sparingly and only where there is demonstrable excess of jurisdiction, breach of the rules of natural justice or patent procedural irregularity.
34. The Applicants herein have argued that the orders by Hon. Nyakundi dated 26th July 2025 were given suo moto as none of the parties in the application were present when the orders were given. The concerns raised by the Applicant are serious and would require this court to look into and address them as it speaks to procedural propriety by the trial court. Both the parties have to confirm that the allegations raised are indeed as stated.
35. The Applicants fault the trial court for referring the matter to Mediation and adopting the Mediation Agreement without the parties’ consent.
36. From the record, the Advocates for both parties were present in Court on 15/7/2025 when the court referred the matter to Mediation. The Court’s action was perfectly within its mandate and was firmly anchored in the law under Article 159 (2) (2) of the Constitution, Section 59 (1) (b) and Order 26 Rule 2 of the Civil Procedure Rules and Rule 5 (1) of the Civil Procedure (Court Annexed Mediation) Rules.
37. Additionally, the parties’ Advocates were present on 26/8/2025 when the trial court adopted the impugned Mediation Settlement Agreement. Suffice to say, any aggrieved party had the opportunity to lodge the appropriate application, under the Court Annexed Mediation Rules, to set aside the Mediation Settlement Agreement. In the circumstances, the application for revision is misconceived.
38. The Respondent claims that the Applicant should have addressed their grievances through an appellate court instead of seeking the High Court to exercise its supervisory duty over the subordinate court.
39. In MNN v JMM (Miscellaneous Application E024 of 2021) [2022] KEHC 12488 (KLR) (Family) (27 May 2022), the High Court at Milimani addressed the issue of the Superior Court’s supervisory jurisdiction as stated under Article 165(6), by stating that the superior court cannot assume unlimited jurisdiction to correct every perceived wrong decision. It stated that supervisory jurisdiction should be used sparingly where there is a flagrant abuse of power or lack of jurisdiction. It stated that it is not an alternative route of appeal to a dissatisfied litigant.
40. The jurisdiction to grant a stay is discretionary and must be exercised judicially upon established principles. He must establish that there will be substantial loss, he must provide security and that the application was filed without unreasonable delay.
41. The Applicant has not demonstrated how the ruling issued on 26th July 2025 will be executed or create a state of affairs warranting a stay order, as the court had adopted the mediation settlement.
42. In Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kenya (Civil Application 133 of 2015) [2015] KECA 353 (KLR) (2 October 2015), Justice Kantai, J stated that:- “An order for stay of execution is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a Judgment. The delay of performance presupposes the existence of a situation to stay – called a “positive order” – either an order that has not been complied with or has partly been complied with. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates v National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated:
….. an order for stay of execution must be intended to serve a purpose …..”
Following that approach of looking at the nature of the orders even before delving into the said principles in a Rule 5(2) (b) application, the Court has identified negative orders as orders that are incapable of execution. Consequently, an order for stay of execution cannot be issued in respect of such an order. That was the position in Executive Estates Limited v Kenya Posts & Anor. [2005] 1 E.A. 53 where it was stated: …… The order which dismissed the suit was a negative order which is not capable of execution ……”
43. If the orders issued on 26th July 2025 were an adoption of mediation settlement, it cannot be described as an executable decree that is capable of being suspended until the orders imposed are enforceable.
44. I do note that the dispute before the court relates to the leadership of the church, which falls squarely within the internal governance of the church constitution, unless there is an exceptional circumstance that would warrant this court to intervene.
45. In Geoffrey Muthinja Kabiru & 2 Others v Samuel Munga Henry & 1756 Others [2015] eKLR, Justice PJ Otieno stated that:- “With the dispute resolution clause in the churches’ constitution, I do find that this matter, when filed, was premature and contrary to the principle of exhaustion or ripeness. I find that the court’s jurisdiction has been ousted and when so ousted the court lacks jurisdiction to deal with it. The court, in these circumstances, downed its tools by striking out the matter to enable the parties to go to their ordained forum.”
46. From the above analysis, it is my finding that the Notice of Motion application dated 16th April 2026 lacks merit and it is therefore dismissed. Since the matter involves members from the same church, and in order to prevent further disintegration of the body of Christ, there shall be no order as to costs.
47. It is so ordered.