'Applicant’s Case:
1. The Applicant herein filed a Notice of Motion dated 19thAugust, 2024 seeking the following orders;
a) DECLARATION that the elections held on 27th June 2024 and the meeting of the Respondent''s Elections Board held on 25th July 2024 were marred by irregularities and flawed processes, contrary to the principles of fairness, transparency and accountability.
b) CERTIORARI to remove into this Court and quash the decision of the Respondent''s Presiding Officer in the elections held on 27th June 2024 and the decision of the Respondent''s Elections Dispute Tribunal made on 25th July 2024concerning the elections at Thome Section both declaring Rev. Alex Njogu as the Presbyter.
c) CERTIORARI to remove into this Court and quash the decision of the Respondent''s decision in the letter dated29th July 2024 designating the Thome Section Kenya Assemblies of God Church under the stewardship of the General Office of Kenya Assemblies of God Church.
d) MANDAMUS compelling the Respondent to adopt the status quo resolution of the Thome Section Kenya Assemblies of God Church captured in Minute IX of the meeting held on 4th April 2024 that Rev. Dr. Harris Gichuhi continue as the Presbyter and the Applicant herein Secretary/Treasurer pending the resolution of the disputes relating to the Section elections conducted on 27th June 2024.
e) PROHIBITION restraining the Respondent by itself or its servants or agents or otherwise howsoever from continuing with or relying on the elections held on 27th June 2024 and any actions or processes stemming from it.
f) The costs of this Application be provided for.
g) Any other order that the Honourable Court may deem fit and expedient to grant.
2. The Application is supported by a Statutory Statement dated 9th August, 2025 and Supporting Affidavit of Rev. David Njiri Kamau sworn on 30th August, 2025.
3. The Applicant herein Rev. David Njiri Kamau, argues that he was a duly qualified candidate for the position of Presbyter, having previously served without blemish as Secretary/Treasurer in 2014 and 2018 under the KAG Constitution 2007.
4. The Applicant''s case is anchored on the assertion that the 2020 KAG Constitution, which was purportedly used to exclude his candidature, is the subject of a pending legal challenge, and that by a resolution of the National Executive Committee (NEC) in February 2024, all provisions relating to the Election Board under that Constitution were deferred.
5. Consequently, elections were to be conducted under KAG tradition, as per the 2007 Constitution, which does not restrict candidacy to only Senior Pastors in the manner described in Article 5(2) of the 2020 Constitution.
6. On the material day, the Applicant was allowed to contest and emerged top in all seven rounds of voting, culminating in a simple majority win as provided under the applicable electoral process.
7. Despite this, the Presiding Officer, Bishop Muhuko, declared the first runners-up, Rev. Alex Njogu, as the duly elected Presbyter, thereby disregarding the majority vote and purportedly acting on instructions from the Senior Church Leadership to enforce the 2020 Constitution. This declaration was met with resistance from the members present.
8. Following the elections, the Applicant formally sought internal redress through a letter dated 10th July 2024, invoking the Church’s internal dispute resolution mechanisms. Despite convening a meeting on 25th July 2024 chaired by Rev. Zabron Alulu, which purported to investigate the dispute, the Applicant contends that his legitimate concerns particularly regarding the applicability of the 2007 Constitution, his credentialing as a Senior Pastor, and the procedural irregularities in the conduct of the election were neither substantively addressed nor resolved.
9. Subsequently, the Church''s legal representatives issued a letter on 29th July 2024 affirming the results, only for the same to be revoked via another communication on 31st July 2024, citing the need to resolve existing anomalies.
10. As matters stand, the Thome Section remains without a properly recognized leadership, a situation the Applicant deems untenable especially in view of ongoing church programs requiring coordination and accountability.
11. The Applicant urges this Honourable Court to recognize the flawed nature of the impugned elections, acknowledge the ongoing dispute over the validity of the 2020 Constitution, and adopt the resolution passed on 4th April 2024 whereby Rev. Dr. Harris Gichuhi continues as Presbyter and Rev. David Njiri Kamau as Secretary/Treasurer of the Thome Section pending the final determination of the Constitutional dispute.
12. The Applicant canvassed his Application by way of written submissions dated 14th October, 2024 and supplementary submissions dated 22nd July, 2025.
13. The Applicant submits that the decisions made, including the declaration of Rev. Alex Njogu as Presbyter and the placing of the Section under central management, were procedurally unfair, biased, unreasonable, made in bad faith, and contrary to both the Constitution and the Fair Administrative Action Act, 2015.
14. The Applicant avers that the Respondent failed to comply with Section 4(3) and Section 7(2) of the Fair Administrative Action Act, which require, inter alia, that affected persons should be accorded adequate notice, reasons for the administrative action, and a fair opportunity to be heard.
15. In this case, the Applicant argues that he was not given such an opportunity despite formally writing to the Respondent on 10th July 2024 requesting intervention through internal dispute resolution mechanisms. The Respondent ignored this letter and later convened a meeting in which the Applicant was not allowed to meaningfully state his case.
16. The elections themselves were flawed. Although the Applicant emerged top in multiple rounds of voting, he was arbitrarily excluded from further rounds, and ultimately, the second-place candidate, Rev. Njogu, was declared winner. This contradicted the Church Constitution and voting procedures. The result was not only irregular but also irrational and unjustified.
17. The Applicant further submits that the Elections Board that later affirmed Rev. Njogu’s win lacked impartiality, as some of its members had presided over the impugned election itself. This gives rise to a reasonable apprehension of bias.
18. The Applicant relies on the decision in Republic v Kenya Motorsports Federation Ltd & Another Ex Parte RHTM & Another [2021] eKLR and Republic v University of Nairobi Ex Parte Maxwell Odhiambo [2019] eKLR, the Court emphasized the requirement to hear parties before making adverse decisions. In this case, no meaningful hearing was afforded to the Applicant at any stage.
19. The Applicant further submits that the unilateral decision made by the Respondent on 29th July 2024 to place the Thome Section under central management lacked consultation and violated the Section’s autonomy. This action was beyond the powers of the Respondent and thus ultra vires. As held in Republic v Public Procurement Administrative Review Board & 2 Others [2019] eKLR, an administrative action must not exceed the scope of power granted and must serve a proper purpose.
20. He contends that the Respondent also failed to act on the Section’s resolution made on 4th April 2024 to maintain the status quo pending resolution of disputes. This inaction undermines internal governance, disrupts operations, and offends the principles of fairness.
21. In Republic v Secretary of the Firearms Licensing Board & 2 Others Ex Parte Senator Johnson Muthama [2018] eKLR, the Court held that failure to give reasons or afford a hearing renders administrative action invalid. Likewise, in Republic v Ministry of Interior Coordination of National Government & Another Ex Parte Bao Aiwu & 2 Others [2021] eKLR, the Court condemned procedural unfairness where individuals were not given a chance to be heard.
22. The Applicant submits that the Respondent’s conduct was unreasonable, unfair, made in bad faith, and violates Article 47 of the Constitution. These grounds satisfy the threshold for judicial review, as recognized in Section 11 of the Fair Administrative Action Act and Vivo Energy Kenya Ltd v Commissioner of Customs & Border Control, Kenya Revenue Authority & Another [2020] eKLR, where courts are empowered to grant any just and equitable remedy.
23. The Applicant identified three legal issues for this Court’s determination:
a) Whether the Applicant was required to exhaust internal dispute resolution mechanisms before approaching the Court, and whether such mechanisms were available, accessible, and effective;
b) Whether the Applicant was eligible to contest for the position of Presbyter under the Church Constitution and internal guidelines; and;
c) Whether the failure to join other individuals such as the Returning Officer and Rev. Alex Njogu constitutes fatal misjoinder or non-joinder that defeats these proceedings.
24. On the first issue, the Respondent argues that the Applicant failed to exhaust internal redress remedies as prescribed by the Church Constitution, relying on Judicial Review No. E014 of 2020. The Applicant vehemently disputes this and submits that the cited decision is entirely distinguishable, as it concerned constitutional amendments rather than electoral irregularities. He contends that the Respondent has failed to avail the decision to the Court, and the Applicant.
25. It is his submission that he did, in fact, attempt to invoke the internal dispute resolution mechanisms through a letter dated 10th July 2024, formally lodging a complaint and invoking Article IX, Section 7(c) of the Church Constitution, which vests final jurisdiction in the National Executive Committee (NEC). He states that the Respondent acknowledged this by letter dated 29th July 2024, indicating that the dispute had been escalated internally. However, no further communication or determination has been made, rendering the process inaccessible and ineffective.
26. The Applicant submits that further compounding this failure, a report by the Dispute and Conflict Resolution Committee acknowledged procedural anomalies and candidate eligibility concerns but was disregarded by the Respondent, who nevertheless ratified the contested outcome and placed the Thome Section under the administration of the General Office. He asserts that this move undermined the legitimacy of internal remedies and amounted to administrative bad faith. In support, the Applicant relies on the decision in Mohammed Ali Baadi and Others vs The Attorney General and 11 Others, (2018} eKLR, where the Court held that the doctrine of exhaustion only applies where the alternative forum is accessible, affordable, timely, and effective.
27. In that case, the Court emphasized that internal remedies must be genuinely available and capable of redressing the complaint in its totality. Additionally, in Republic v Baringo North Sub-County Alcoholic Drinks Regulation Committee Exparte Daniel Chelagat t/a Chemchem Distributors & Another (20221) KEHC 3489 KLR, the Court dismissed a preliminary objection based on failure to exhaust internal remedies, finding that the authority’s own inaction and non-compliance rendered the internal process ineffectual. It was held that no party should benefit from its own failure to act or enforce the law, and that litigation should not be used as a strategy to frustrate justice.
28. Turning to the second issue, the Respondent challenges the Applicant’s eligibility by claiming he is not a “Senior Pastor” and was therefore disqualified from contesting. The Applicant refutes this claim and points to his over twenty (20) years of dedicated service to the Respondent, including holding the office of Secretary/Treasurer of the Thome Section for a cumulative ten (10) years a position reserved for Senior Pastors under the Church’s administrative framework.
29. The Applicant submits that the Respondent has offered no evidence to disprove his qualifications or past leadership. The Respondent further relies on a February 2024 circular which purportedly restricted candidacy to Senior Pastors.
30. However, the Applicant submits that this circular deviated from the Church Constitution of 2010 and was neither procedurally adopted nor publicly disclosed. It introduced a new electoral process whereby nomination and election occurred simultaneously via the ballot, an opaque and arbitrary system that offends both internal democratic norms and constitutional guarantees under Article 47. The Respondent’s inconsistent Application of rules and shifting of positions also point to discriminatory and irregular conduct, further supporting the Applicant’s contention that the election was unlawful.
31. On the third issue of misjoinder and non-joinder, the Respondent argues that the proceedings are fatally defective due to failure to enjoin the Returning Officer and Rev. Alex Njogu. The Applicant submits that this argument is legally untenable. These proceedings are rooted in judicial review, which is concerned with the lawfulness, fairness, and rationality of the decision-making process not the personal rights or interests of individuals who may have benefited from an impugned decision. The primary focus is on the Respondent and its Elections Board, whose conduct and decisions are the subject of scrutiny.
32. The Applicant contends that he is not challenging Rev. Njogu’s personal qualifications or actions but the flawed process that led to his declaration as Presbyter. As such, non-joinder of these individuals does not affect the validity or competence of the proceedings.
33. The Applicant submits that he made a bona fide attempt to activate the Church''s internal dispute resolution mechanisms, which were rendered inaccessible and ineffective by the Respondent''s own conduct. The Respondent has failed to produce any evidence to disqualify the Applicant from the election, has upheld a flawed and procedurally irregular process despite internal findings of irregularities, and has advanced technical objections that are irrelevant to the issues of administrative justice. The Respondent’s reliance on an inapplicable precedent, an unenforced circular, and the absence of joined parties cannot cure or mask the procedural and substantive defects that plagued the impugned elections.
The Respondent’s case:
34. It is averred that elections for sectional leadership were conducted at the Thome Section of the Kenya Assemblies of God in the same manner as in the other 667 sections of the Church, and in strict adherence to the Church Constitution.
35. It is the Respondent’s position that, pursuant to the said Constitution, only individuals holding the rank of Senior Pastor are eligible to vie for the positions of Presbyter, Secretary, and Treasurer.
36. The Respondent contends that although the Applicant may have held credentials within the Church, he did not meet the eligibility threshold for any of the elective positions, and as such, any votes cast in his favour were rendered invalid and were not counted.
37. The Respondent further asserts that prior to the elections, both general and specific guidelines were communicated to all voters by the respective Returning Officers, and the electoral process was undertaken transparently and lawfully.
38. It is the Respondent’s position that any disputes or grievances arising from the elections were escalated to the appropriate internal Church organs, which have the mandate to address and determine such matters in accordance with ecclesiastical governance procedures.
39. The Respondent filed written submissions dated 7thApril, 2025.
40. The Respondent submits that the Applicant was ineligible to vie for the position of Presbyter in the Thome Section elections as he was not a Senior Pastor, which is a mandatory requirement under the Church’s Constitution and election guidelines. The elections were held across all 667 Church sections, including Thome, under uniform rules, and the ballot served both as nomination and voting. Consequently, any votes cast in favour of the Applicant, who only holds credentials as a pastor and not as a Senior Pastor, were invalid and disregarded.
41. The Respondent further argues that the Applicant was aware of these requirements and, like all participants, was bound by them. The crux of the matter, therefore, is the Applicant''s ineligibility under the governing Church rules.
42. In addition, the Respondent contends that the Applicant has not exhausted the internal dispute resolution mechanisms provided for under the Church’s registered Constitution. This fact is admitted in the Applicant’s own correspondence, where he acknowledges the matter was still under consideration by relevant Church organs. The Respondent cites JR No. E014 of 2020 Republic -vs- Registrar of Societies and Kenya Assemblies of God Ex partie Reverend David Njiri Kamau in which the High Court held that parties must exhaust available and effective internal mechanisms before seeking judicial review unless exceptional circumstances are shown, which are not present in this case.
43. The Respondent notes that the Applicant has, in the past, unsuccessfully challenged the validity of the Church Constitution in multiple forums before the Registrar General and in various suits including HCJR No. E014 of 2022, HCCC No. E210 of 2022, and ELRC No. E177 of 2022. The ruling in JR No. E014 of 2020 affirming the availability and sufficiency of the Church’s dispute resolution framework remains unchallenged and binding.
44. Moreover, the Respondent argues that the Application is fatally defective for non-joinder of key parties, including the duly elected Presbyter Rev. Alex Njogu and others whose rights would be directly affected by any orders issued.
45. The Applicant, it is submitted, acted prematurely by approaching the Court without allowing the Church adequate time to conclude its internal processes.
46. They maintain that the elections at the Thome Section were conducted in a free, fair, and constitutionally compliant manner, and that the actions and decisions taken thereafter were within the scope of the Church’s legal and administrative authority.
Analysis and Determination:
Following are the issues for determination:
1) Whether or not the Application is fatally defective, for non-joinder of the returning officer.
2) Whether or not the suit is barred by the doctrine of exhaustion.
3) Whether the Application has merit;
4) Who shall bear cost.
47. The Applicant''s case is anchored on the assertion that the 2020 KAG Constitution, which was purportedly used to exclude his candidature, is the subject of a pending legal challenge, and that by a resolution of the National Executive Committee (NEC) in February 2024, all provisions relating to the Election Board under that Constitution were deferred.
48. Consequently, elections were to be conducted under KAG tradition, as per the 2007 Constitution, which does not restrict candidacy to only Senior Pastors in the manner described in Article 5(2) of the 2020 Constitution.
49. The court is of the view that the Respondents acted contrary to the law in applying the 2020 constitution as opposed to the 2007 constitution.
50. The Respondent invoked the provisions of the 2007 constitution as a result of which the court finds that the Respondent acted ultra vires in applying and invoking the wrong constitution to the detriment of the Applicant.
51. This amounts to a fundamental infraction that has the effect of vitiating the entire election process. An illegal electoral process cannot generate rights, duties or any binding electotal outcomes. It is a non-consequential process.
52. The failure to adhere to the existing or agreed election procedure by anybody or organisation irrespective of the form offends the principles of democracy.Elections must at all times be transparent, competitive free and fair.
53. No doubt an electoral process that is not in conformity with the constitutional framework cannot generate credible leadership.
54. The conduct of elections under an organisations’ constitution whose legitimacy or validity is the subject of a legal dispute amounts to a violation of the tenets of a free and fair electoral process.
55. On the question, whether the Applicant is bad for failing to abide by the doctrine of exhaustion this court notes that the Applicant invoked the available alternative resolution mechanisms.
56. In particular, the court notes that the Applicant formally sought internal redress through a letter dated 10th July 2024, invoking the Church’s internal dispute resolution mechanisms.
57. Despite convening a meeting on 25th July 2024 chaired by Rev. Zabron Alulu, which purported to investigate the dispute, the Applicants legitimate concerns particularly regarding the applicability of the 2007 Constitution, his credentialing as a Senior Pastor, and the procedural irregularities in the conduct of the election were neither substantively addressed nor resolved.
58. In the case of Council of County Governors v Attorney General & 12 others [2018] eKLR, Applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
59. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.
60. In the case Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] eKLR it was held that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.
61. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”.
62. The court is satisfied that the Applicant has demonstrated to the satisfaction of the court that he indeed invoked the available dispute resolution dissolution mechanisms before moving this court. The Applicant fulfilled the statutory requirement of Section 9 of the fair administrative action act.
63. The Church''s legal representatives issued a letter on 29th July 2024 affirming the results, only for the same to be revoked via another communication on 31st July 2024, citing the need to resolve existing anomalies. The Respondent has not informed the court of the status of the anomalies.
64. The decisions made in the circumstances, including the declaration of Rev. Alex Njogu as Presbyter and the placing of the Section under central management, were procedurally unfair, biased, unreasonable, made in bad faith, and contrary to both the Constitution and the Fair Administrative Action Act, 2015.
65. The decision made by the Respondent on 29th July 2024 to place the Thome Section under central management is clouded by the foregoing legal challenges and it cannot amount to a sound decision.
66. The Respondent’s conduct was unreasonable, unfair and in contravention of Article 47 of the Constitution in the circumstances.
67. The Respondent acknowledged the Applicant’s letter dated 29th July 2024, indicating that the dispute had been escalated internally. No further communication or determination has been made, rendering the process inaccessible and ineffective.
68. There were past suits HCJR No. E014 of 2022, HCCC No. E210 of 2022, and ELRC No. E177 of 2022. The ruling in JR No. E014 of 2020 affirming the availability and sufficiency of the Church’s dispute resolution framework remains unchallenged and binding.
69. On the issue of failure to enjoin the Returning Officer and Rev. Alex Njogu.The court notes that these proceedings are rooted in judicial review, which is concerned with the lawfulness, fairness, and rationality of the decision-making process. From the pleadings, it is clear that The Applicant is not challenging Rev. Njogu’s personal qualifications or actions but the flawed process that led to his declaration as Presbyter.
70. This court is satisfied that indeed Judicial Review proceedings are not tailored at assessing the merits or the merits of the decision.
71. When determining cases under its Judicial Review jurisdiction, the court is concerned with finding out or establishing, whether otherwise illegalities procedural year irregularities, or improprieties the judicial review court does not delve into a merit analysis.
72. In the circumstances, the court does not find it fatal that the Applicant did not enjoin the returning officer as a party to the Suit.
73. The Respondent argued that prior to the elections, both general and specific guidelines were communicated to all voters by the respective Returning Officers, and the electoral process was undertaken transparently and lawfully. No proof towards this was advanced.
74. According to the Respondent, the Applicant was ineligible to vie for the position of Presbyter in the Thome Section elections as he was not a Senior Pastor, which is a mandatory requirement under the Church’s Constitution and election guidelines. The elections were held across all 667 Church sections, including Thome, under uniform rules, and the ballot served both as nomination and voting. Consequently, any votes cast in favour of the Applicant, who only holds credentials as a pastor and not as a Senior Pastor, were invalid and disregarded. The Respondent did not tender evidence to prove this.
Disposition:
75. The court has analysed the above and arrived at an informed conclusion that the Application has merit.
Order:
1) A DECLARATION is hereby issued that the elections held on 27th June 2024 and the meeting of the Respondent''s Elections Board held on 25th July 2024 were marred by irregularities and flawed processes, contrary to the principles of fairness, transparency and accountability.
2) An order of CERTIORARI to remove into this Court and quash the decision of the Respondent''s Presiding Officer in the elections held on 27th June 2024 and the decision of the Respondent''s Elections Dispute Tribunal made on 25th July 2024concerning the elections at Thome Section both declaring Rev. Alex Njogu as the Presbyter is hereby issued.
3) An order of CERTIORARI to remove into this Court and quash the decision of the Respondent''s decision in the letter dated29th July 2024 designating the Thome Section Kenya Assemblies of God Church under the stewardship of the General Office of Kenya Assemblies of God Church is hereby issued.
4) An order of MANDAMUS compelling the Respondent to adopt the status quo resolution of the Thome Section Kenya Assemblies of God Church captured in Minute IX of the meeting held on 4th April 2024 that Rev. Dr. Harris Gichuhi continue as the Presbyter and the Applicant herein Secretary/Treasurer pending the resolution of the disputes relating to the Section elections conducted on 27th June 2024 is hereby issued.
5) An order of PROHIBITION restraining the Respondent by itself or its servants or agents or otherwise howsoever from continuing with or relying on the elections held on 27th June 2024 and any actions or processes stemming from it is hereby issued.
6) The costs of this Application to the Applicant.
'
1. The Applicant herein filed a Notice of Motion dated 19thAugust, 2024 seeking the following orders;
a) DECLARATION that the elections held on 27th June 2024 and the meeting of the Respondent''s Elections Board held on 25th July 2024 were marred by irregularities and flawed processes, contrary to the principles of fairness, transparency and accountability.
b) CERTIORARI to remove into this Court and quash the decision of the Respondent''s Presiding Officer in the elections held on 27th June 2024 and the decision of the Respondent''s Elections Dispute Tribunal made on 25th July 2024concerning the elections at Thome Section both declaring Rev. Alex Njogu as the Presbyter.
c) CERTIORARI to remove into this Court and quash the decision of the Respondent''s decision in the letter dated29th July 2024 designating the Thome Section Kenya Assemblies of God Church under the stewardship of the General Office of Kenya Assemblies of God Church.
d) MANDAMUS compelling the Respondent to adopt the status quo resolution of the Thome Section Kenya Assemblies of God Church captured in Minute IX of the meeting held on 4th April 2024 that Rev. Dr. Harris Gichuhi continue as the Presbyter and the Applicant herein Secretary/Treasurer pending the resolution of the disputes relating to the Section elections conducted on 27th June 2024.
e) PROHIBITION restraining the Respondent by itself or its servants or agents or otherwise howsoever from continuing with or relying on the elections held on 27th June 2024 and any actions or processes stemming from it.
f) The costs of this Application be provided for.
g) Any other order that the Honourable Court may deem fit and expedient to grant.
2. The Application is supported by a Statutory Statement dated 9th August, 2025 and Supporting Affidavit of Rev. David Njiri Kamau sworn on 30th August, 2025.
3. The Applicant herein Rev. David Njiri Kamau, argues that he was a duly qualified candidate for the position of Presbyter, having previously served without blemish as Secretary/Treasurer in 2014 and 2018 under the KAG Constitution 2007.
4. The Applicant''s case is anchored on the assertion that the 2020 KAG Constitution, which was purportedly used to exclude his candidature, is the subject of a pending legal challenge, and that by a resolution of the National Executive Committee (NEC) in February 2024, all provisions relating to the Election Board under that Constitution were deferred.
5. Consequently, elections were to be conducted under KAG tradition, as per the 2007 Constitution, which does not restrict candidacy to only Senior Pastors in the manner described in Article 5(2) of the 2020 Constitution.
6. On the material day, the Applicant was allowed to contest and emerged top in all seven rounds of voting, culminating in a simple majority win as provided under the applicable electoral process.
7. Despite this, the Presiding Officer, Bishop Muhuko, declared the first runners-up, Rev. Alex Njogu, as the duly elected Presbyter, thereby disregarding the majority vote and purportedly acting on instructions from the Senior Church Leadership to enforce the 2020 Constitution. This declaration was met with resistance from the members present.
8. Following the elections, the Applicant formally sought internal redress through a letter dated 10th July 2024, invoking the Church’s internal dispute resolution mechanisms. Despite convening a meeting on 25th July 2024 chaired by Rev. Zabron Alulu, which purported to investigate the dispute, the Applicant contends that his legitimate concerns particularly regarding the applicability of the 2007 Constitution, his credentialing as a Senior Pastor, and the procedural irregularities in the conduct of the election were neither substantively addressed nor resolved.
9. Subsequently, the Church''s legal representatives issued a letter on 29th July 2024 affirming the results, only for the same to be revoked via another communication on 31st July 2024, citing the need to resolve existing anomalies.
10. As matters stand, the Thome Section remains without a properly recognized leadership, a situation the Applicant deems untenable especially in view of ongoing church programs requiring coordination and accountability.
11. The Applicant urges this Honourable Court to recognize the flawed nature of the impugned elections, acknowledge the ongoing dispute over the validity of the 2020 Constitution, and adopt the resolution passed on 4th April 2024 whereby Rev. Dr. Harris Gichuhi continues as Presbyter and Rev. David Njiri Kamau as Secretary/Treasurer of the Thome Section pending the final determination of the Constitutional dispute.
12. The Applicant canvassed his Application by way of written submissions dated 14th October, 2024 and supplementary submissions dated 22nd July, 2025.
13. The Applicant submits that the decisions made, including the declaration of Rev. Alex Njogu as Presbyter and the placing of the Section under central management, were procedurally unfair, biased, unreasonable, made in bad faith, and contrary to both the Constitution and the Fair Administrative Action Act, 2015.
14. The Applicant avers that the Respondent failed to comply with Section 4(3) and Section 7(2) of the Fair Administrative Action Act, which require, inter alia, that affected persons should be accorded adequate notice, reasons for the administrative action, and a fair opportunity to be heard.
15. In this case, the Applicant argues that he was not given such an opportunity despite formally writing to the Respondent on 10th July 2024 requesting intervention through internal dispute resolution mechanisms. The Respondent ignored this letter and later convened a meeting in which the Applicant was not allowed to meaningfully state his case.
16. The elections themselves were flawed. Although the Applicant emerged top in multiple rounds of voting, he was arbitrarily excluded from further rounds, and ultimately, the second-place candidate, Rev. Njogu, was declared winner. This contradicted the Church Constitution and voting procedures. The result was not only irregular but also irrational and unjustified.
17. The Applicant further submits that the Elections Board that later affirmed Rev. Njogu’s win lacked impartiality, as some of its members had presided over the impugned election itself. This gives rise to a reasonable apprehension of bias.
18. The Applicant relies on the decision in Republic v Kenya Motorsports Federation Ltd & Another Ex Parte RHTM & Another [2021] eKLR and Republic v University of Nairobi Ex Parte Maxwell Odhiambo [2019] eKLR, the Court emphasized the requirement to hear parties before making adverse decisions. In this case, no meaningful hearing was afforded to the Applicant at any stage.
19. The Applicant further submits that the unilateral decision made by the Respondent on 29th July 2024 to place the Thome Section under central management lacked consultation and violated the Section’s autonomy. This action was beyond the powers of the Respondent and thus ultra vires. As held in Republic v Public Procurement Administrative Review Board & 2 Others [2019] eKLR, an administrative action must not exceed the scope of power granted and must serve a proper purpose.
20. He contends that the Respondent also failed to act on the Section’s resolution made on 4th April 2024 to maintain the status quo pending resolution of disputes. This inaction undermines internal governance, disrupts operations, and offends the principles of fairness.
21. In Republic v Secretary of the Firearms Licensing Board & 2 Others Ex Parte Senator Johnson Muthama [2018] eKLR, the Court held that failure to give reasons or afford a hearing renders administrative action invalid. Likewise, in Republic v Ministry of Interior Coordination of National Government & Another Ex Parte Bao Aiwu & 2 Others [2021] eKLR, the Court condemned procedural unfairness where individuals were not given a chance to be heard.
22. The Applicant submits that the Respondent’s conduct was unreasonable, unfair, made in bad faith, and violates Article 47 of the Constitution. These grounds satisfy the threshold for judicial review, as recognized in Section 11 of the Fair Administrative Action Act and Vivo Energy Kenya Ltd v Commissioner of Customs & Border Control, Kenya Revenue Authority & Another [2020] eKLR, where courts are empowered to grant any just and equitable remedy.
23. The Applicant identified three legal issues for this Court’s determination:
a) Whether the Applicant was required to exhaust internal dispute resolution mechanisms before approaching the Court, and whether such mechanisms were available, accessible, and effective;
b) Whether the Applicant was eligible to contest for the position of Presbyter under the Church Constitution and internal guidelines; and;
c) Whether the failure to join other individuals such as the Returning Officer and Rev. Alex Njogu constitutes fatal misjoinder or non-joinder that defeats these proceedings.
24. On the first issue, the Respondent argues that the Applicant failed to exhaust internal redress remedies as prescribed by the Church Constitution, relying on Judicial Review No. E014 of 2020. The Applicant vehemently disputes this and submits that the cited decision is entirely distinguishable, as it concerned constitutional amendments rather than electoral irregularities. He contends that the Respondent has failed to avail the decision to the Court, and the Applicant.
25. It is his submission that he did, in fact, attempt to invoke the internal dispute resolution mechanisms through a letter dated 10th July 2024, formally lodging a complaint and invoking Article IX, Section 7(c) of the Church Constitution, which vests final jurisdiction in the National Executive Committee (NEC). He states that the Respondent acknowledged this by letter dated 29th July 2024, indicating that the dispute had been escalated internally. However, no further communication or determination has been made, rendering the process inaccessible and ineffective.
26. The Applicant submits that further compounding this failure, a report by the Dispute and Conflict Resolution Committee acknowledged procedural anomalies and candidate eligibility concerns but was disregarded by the Respondent, who nevertheless ratified the contested outcome and placed the Thome Section under the administration of the General Office. He asserts that this move undermined the legitimacy of internal remedies and amounted to administrative bad faith. In support, the Applicant relies on the decision in Mohammed Ali Baadi and Others vs The Attorney General and 11 Others, (2018} eKLR, where the Court held that the doctrine of exhaustion only applies where the alternative forum is accessible, affordable, timely, and effective.
27. In that case, the Court emphasized that internal remedies must be genuinely available and capable of redressing the complaint in its totality. Additionally, in Republic v Baringo North Sub-County Alcoholic Drinks Regulation Committee Exparte Daniel Chelagat t/a Chemchem Distributors & Another (20221) KEHC 3489 KLR, the Court dismissed a preliminary objection based on failure to exhaust internal remedies, finding that the authority’s own inaction and non-compliance rendered the internal process ineffectual. It was held that no party should benefit from its own failure to act or enforce the law, and that litigation should not be used as a strategy to frustrate justice.
28. Turning to the second issue, the Respondent challenges the Applicant’s eligibility by claiming he is not a “Senior Pastor” and was therefore disqualified from contesting. The Applicant refutes this claim and points to his over twenty (20) years of dedicated service to the Respondent, including holding the office of Secretary/Treasurer of the Thome Section for a cumulative ten (10) years a position reserved for Senior Pastors under the Church’s administrative framework.
29. The Applicant submits that the Respondent has offered no evidence to disprove his qualifications or past leadership. The Respondent further relies on a February 2024 circular which purportedly restricted candidacy to Senior Pastors.
30. However, the Applicant submits that this circular deviated from the Church Constitution of 2010 and was neither procedurally adopted nor publicly disclosed. It introduced a new electoral process whereby nomination and election occurred simultaneously via the ballot, an opaque and arbitrary system that offends both internal democratic norms and constitutional guarantees under Article 47. The Respondent’s inconsistent Application of rules and shifting of positions also point to discriminatory and irregular conduct, further supporting the Applicant’s contention that the election was unlawful.
31. On the third issue of misjoinder and non-joinder, the Respondent argues that the proceedings are fatally defective due to failure to enjoin the Returning Officer and Rev. Alex Njogu. The Applicant submits that this argument is legally untenable. These proceedings are rooted in judicial review, which is concerned with the lawfulness, fairness, and rationality of the decision-making process not the personal rights or interests of individuals who may have benefited from an impugned decision. The primary focus is on the Respondent and its Elections Board, whose conduct and decisions are the subject of scrutiny.
32. The Applicant contends that he is not challenging Rev. Njogu’s personal qualifications or actions but the flawed process that led to his declaration as Presbyter. As such, non-joinder of these individuals does not affect the validity or competence of the proceedings.
33. The Applicant submits that he made a bona fide attempt to activate the Church''s internal dispute resolution mechanisms, which were rendered inaccessible and ineffective by the Respondent''s own conduct. The Respondent has failed to produce any evidence to disqualify the Applicant from the election, has upheld a flawed and procedurally irregular process despite internal findings of irregularities, and has advanced technical objections that are irrelevant to the issues of administrative justice. The Respondent’s reliance on an inapplicable precedent, an unenforced circular, and the absence of joined parties cannot cure or mask the procedural and substantive defects that plagued the impugned elections.
The Respondent’s case:
34. It is averred that elections for sectional leadership were conducted at the Thome Section of the Kenya Assemblies of God in the same manner as in the other 667 sections of the Church, and in strict adherence to the Church Constitution.
35. It is the Respondent’s position that, pursuant to the said Constitution, only individuals holding the rank of Senior Pastor are eligible to vie for the positions of Presbyter, Secretary, and Treasurer.
36. The Respondent contends that although the Applicant may have held credentials within the Church, he did not meet the eligibility threshold for any of the elective positions, and as such, any votes cast in his favour were rendered invalid and were not counted.
37. The Respondent further asserts that prior to the elections, both general and specific guidelines were communicated to all voters by the respective Returning Officers, and the electoral process was undertaken transparently and lawfully.
38. It is the Respondent’s position that any disputes or grievances arising from the elections were escalated to the appropriate internal Church organs, which have the mandate to address and determine such matters in accordance with ecclesiastical governance procedures.
39. The Respondent filed written submissions dated 7thApril, 2025.
40. The Respondent submits that the Applicant was ineligible to vie for the position of Presbyter in the Thome Section elections as he was not a Senior Pastor, which is a mandatory requirement under the Church’s Constitution and election guidelines. The elections were held across all 667 Church sections, including Thome, under uniform rules, and the ballot served both as nomination and voting. Consequently, any votes cast in favour of the Applicant, who only holds credentials as a pastor and not as a Senior Pastor, were invalid and disregarded.
41. The Respondent further argues that the Applicant was aware of these requirements and, like all participants, was bound by them. The crux of the matter, therefore, is the Applicant''s ineligibility under the governing Church rules.
42. In addition, the Respondent contends that the Applicant has not exhausted the internal dispute resolution mechanisms provided for under the Church’s registered Constitution. This fact is admitted in the Applicant’s own correspondence, where he acknowledges the matter was still under consideration by relevant Church organs. The Respondent cites JR No. E014 of 2020 Republic -vs- Registrar of Societies and Kenya Assemblies of God Ex partie Reverend David Njiri Kamau in which the High Court held that parties must exhaust available and effective internal mechanisms before seeking judicial review unless exceptional circumstances are shown, which are not present in this case.
43. The Respondent notes that the Applicant has, in the past, unsuccessfully challenged the validity of the Church Constitution in multiple forums before the Registrar General and in various suits including HCJR No. E014 of 2022, HCCC No. E210 of 2022, and ELRC No. E177 of 2022. The ruling in JR No. E014 of 2020 affirming the availability and sufficiency of the Church’s dispute resolution framework remains unchallenged and binding.
44. Moreover, the Respondent argues that the Application is fatally defective for non-joinder of key parties, including the duly elected Presbyter Rev. Alex Njogu and others whose rights would be directly affected by any orders issued.
45. The Applicant, it is submitted, acted prematurely by approaching the Court without allowing the Church adequate time to conclude its internal processes.
46. They maintain that the elections at the Thome Section were conducted in a free, fair, and constitutionally compliant manner, and that the actions and decisions taken thereafter were within the scope of the Church’s legal and administrative authority.
Analysis and Determination:
Following are the issues for determination:
1) Whether or not the Application is fatally defective, for non-joinder of the returning officer.
2) Whether or not the suit is barred by the doctrine of exhaustion.
3) Whether the Application has merit;
4) Who shall bear cost.
47. The Applicant''s case is anchored on the assertion that the 2020 KAG Constitution, which was purportedly used to exclude his candidature, is the subject of a pending legal challenge, and that by a resolution of the National Executive Committee (NEC) in February 2024, all provisions relating to the Election Board under that Constitution were deferred.
48. Consequently, elections were to be conducted under KAG tradition, as per the 2007 Constitution, which does not restrict candidacy to only Senior Pastors in the manner described in Article 5(2) of the 2020 Constitution.
49. The court is of the view that the Respondents acted contrary to the law in applying the 2020 constitution as opposed to the 2007 constitution.
50. The Respondent invoked the provisions of the 2007 constitution as a result of which the court finds that the Respondent acted ultra vires in applying and invoking the wrong constitution to the detriment of the Applicant.
51. This amounts to a fundamental infraction that has the effect of vitiating the entire election process. An illegal electoral process cannot generate rights, duties or any binding electotal outcomes. It is a non-consequential process.
52. The failure to adhere to the existing or agreed election procedure by anybody or organisation irrespective of the form offends the principles of democracy.Elections must at all times be transparent, competitive free and fair.
53. No doubt an electoral process that is not in conformity with the constitutional framework cannot generate credible leadership.
54. The conduct of elections under an organisations’ constitution whose legitimacy or validity is the subject of a legal dispute amounts to a violation of the tenets of a free and fair electoral process.
55. On the question, whether the Applicant is bad for failing to abide by the doctrine of exhaustion this court notes that the Applicant invoked the available alternative resolution mechanisms.
56. In particular, the court notes that the Applicant formally sought internal redress through a letter dated 10th July 2024, invoking the Church’s internal dispute resolution mechanisms.
57. Despite convening a meeting on 25th July 2024 chaired by Rev. Zabron Alulu, which purported to investigate the dispute, the Applicants legitimate concerns particularly regarding the applicability of the 2007 Constitution, his credentialing as a Senior Pastor, and the procedural irregularities in the conduct of the election were neither substantively addressed nor resolved.
58. In the case of Council of County Governors v Attorney General & 12 others [2018] eKLR, Applying and exhausting alternative dispute resolution mechanisms, is a condition precedent to filing of court action by either of the units of government. Only after applying and exhausting the available dispute resolution mechanisms should parties resort to judicial intervention.
59. The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.
60. In the case Communication Commission of Kenya & 5 others v Royal Media Services Ltd & 5 Others [2014] eKLR it was held that the principle of avoidance means that a Court will not determine a constitutional issue when a matter may properly be decided on another basis. The doctrine interrogates whether there are other ways of resolving a dispute outside a constitutional petition.
61. The doctrine is at times referred to as the Constitutional-Avoidance Rule. Black’s Law Dictionary, 10th Edition at page 377 defines it as:
“The doctrine that a case should not be resolved by deciding a constitutional question if it can be resolved in some other fashion”.
62. The court is satisfied that the Applicant has demonstrated to the satisfaction of the court that he indeed invoked the available dispute resolution dissolution mechanisms before moving this court. The Applicant fulfilled the statutory requirement of Section 9 of the fair administrative action act.
63. The Church''s legal representatives issued a letter on 29th July 2024 affirming the results, only for the same to be revoked via another communication on 31st July 2024, citing the need to resolve existing anomalies. The Respondent has not informed the court of the status of the anomalies.
64. The decisions made in the circumstances, including the declaration of Rev. Alex Njogu as Presbyter and the placing of the Section under central management, were procedurally unfair, biased, unreasonable, made in bad faith, and contrary to both the Constitution and the Fair Administrative Action Act, 2015.
65. The decision made by the Respondent on 29th July 2024 to place the Thome Section under central management is clouded by the foregoing legal challenges and it cannot amount to a sound decision.
66. The Respondent’s conduct was unreasonable, unfair and in contravention of Article 47 of the Constitution in the circumstances.
67. The Respondent acknowledged the Applicant’s letter dated 29th July 2024, indicating that the dispute had been escalated internally. No further communication or determination has been made, rendering the process inaccessible and ineffective.
68. There were past suits HCJR No. E014 of 2022, HCCC No. E210 of 2022, and ELRC No. E177 of 2022. The ruling in JR No. E014 of 2020 affirming the availability and sufficiency of the Church’s dispute resolution framework remains unchallenged and binding.
69. On the issue of failure to enjoin the Returning Officer and Rev. Alex Njogu.The court notes that these proceedings are rooted in judicial review, which is concerned with the lawfulness, fairness, and rationality of the decision-making process. From the pleadings, it is clear that The Applicant is not challenging Rev. Njogu’s personal qualifications or actions but the flawed process that led to his declaration as Presbyter.
70. This court is satisfied that indeed Judicial Review proceedings are not tailored at assessing the merits or the merits of the decision.
71. When determining cases under its Judicial Review jurisdiction, the court is concerned with finding out or establishing, whether otherwise illegalities procedural year irregularities, or improprieties the judicial review court does not delve into a merit analysis.
72. In the circumstances, the court does not find it fatal that the Applicant did not enjoin the returning officer as a party to the Suit.
73. The Respondent argued that prior to the elections, both general and specific guidelines were communicated to all voters by the respective Returning Officers, and the electoral process was undertaken transparently and lawfully. No proof towards this was advanced.
74. According to the Respondent, the Applicant was ineligible to vie for the position of Presbyter in the Thome Section elections as he was not a Senior Pastor, which is a mandatory requirement under the Church’s Constitution and election guidelines. The elections were held across all 667 Church sections, including Thome, under uniform rules, and the ballot served both as nomination and voting. Consequently, any votes cast in favour of the Applicant, who only holds credentials as a pastor and not as a Senior Pastor, were invalid and disregarded. The Respondent did not tender evidence to prove this.
Disposition:
75. The court has analysed the above and arrived at an informed conclusion that the Application has merit.
Order:
1) A DECLARATION is hereby issued that the elections held on 27th June 2024 and the meeting of the Respondent''s Elections Board held on 25th July 2024 were marred by irregularities and flawed processes, contrary to the principles of fairness, transparency and accountability.
2) An order of CERTIORARI to remove into this Court and quash the decision of the Respondent''s Presiding Officer in the elections held on 27th June 2024 and the decision of the Respondent''s Elections Dispute Tribunal made on 25th July 2024concerning the elections at Thome Section both declaring Rev. Alex Njogu as the Presbyter is hereby issued.
3) An order of CERTIORARI to remove into this Court and quash the decision of the Respondent''s decision in the letter dated29th July 2024 designating the Thome Section Kenya Assemblies of God Church under the stewardship of the General Office of Kenya Assemblies of God Church is hereby issued.
4) An order of MANDAMUS compelling the Respondent to adopt the status quo resolution of the Thome Section Kenya Assemblies of God Church captured in Minute IX of the meeting held on 4th April 2024 that Rev. Dr. Harris Gichuhi continue as the Presbyter and the Applicant herein Secretary/Treasurer pending the resolution of the disputes relating to the Section elections conducted on 27th June 2024 is hereby issued.
5) An order of PROHIBITION restraining the Respondent by itself or its servants or agents or otherwise howsoever from continuing with or relying on the elections held on 27th June 2024 and any actions or processes stemming from it is hereby issued.
6) The costs of this Application to the Applicant.
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