CORAM: LADY JUSTICE R. WENDOH
RULING
1 The Application before the Court is the Notice of Motion dated 24th February 2026 brought under the provisions of Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act, Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules and all other enabling provisions of the law, in which the Plaintiffs/Applicants seek the following orders:
a) Spent.
b) Spent.
c) That after the inter parties hearing and determination of the Application, this Honourable Court be pleased to extend the interim order of injunction issued on 25th February 2026 while pending the hearing and determination of the suit.
d) That the Defendants, their agents and/or servants be restrained from interfering with the management and running of the ACK Churches in the Diocese of Kapenguria while pending the hearing and determination of the suit herein and also while pending the election of the 1st Bishop of the Diocese of Kapenguria.
e) That costs of this Application be borne by the Respondents.
Applicants’ Case
2 The Applicants seek injunctive orders restraining the Respondents from interfering with the management and administration of the Diocese of Kapenguria and from proceeding with the process leading to the election of the first Bishop pending determination of the suit. They contend that after the Provincial Synod approved the creation of the Diocese of Kapenguria, the Archbishop was required to implement the Synod's decision and facilitate the election of the first Bishop strictly in accordance with the Constitution of the Anglican Church of Kenya. They allege that instead of following the constitutional process, the Archbishop departed from the prescribed procedure and failed to convene and constitute the required organs for the election.
3 The Applicants state that a sixteen-member transition committee was appointed to oversee the operationalization of the Diocese, including finances, staffing, administration of church assets and preparations for the election of the first Bishop. They complain that the Archbishop unlawfully disbanded that committee and replaced it with structures unknown to the Constitution. They further contend that the appointment of the 2nd Respondent as Archbishop’s Commissary was unconstitutional because a Commissary ought to be a lay or clerical person and not a diocesan bishop.
4 The Applicants also challenge the continued involvement of the 3rd Respondent within Kapenguria Diocese, asserting that upon creation of the Diocese he ought to have reverted to Kitale Diocese or been redeployed elsewhere. They allege that he continued to exercise authority within Kapenguria and was publicly portrayed as the Bishop of Kapenguria, thereby creating confusion and division among church members.
5 Further, the Applicants maintain that the Respondents improperly constituted the Synod and Electoral College without following the constitutional procedure and have failed to demonstrate that valid elections of Synod members were conducted. They argue that unless restrained, the Respondents may proceed with an unconstitutional process that could culminate in the election of a Bishop through a flawed procedure, rendering the suit nugatory. They assert that they have established a prima facie case, face irreparable harm, and that the balance of convenience favours preservation of the status quo.
1st Respondent’s Replying Affidavit
6 The 1st Respondent, the Archbishop of the Anglican Church of Kenya, opposes the Application through his replying affidavit dated 26/3/2026 and asserts that it is founded on a misunderstanding of the Church Constitution. He states that the 3rd Respondent is a Suffragan Bishop whose deployment falls within his administrative authority as Archbishop and that the Applicants ought to have utilized internal church dispute-resolution mechanisms if dissatisfied with his deployment. He further denies that the 3rd Respondent was deployed to serve in Kapenguria Diocese.
7 The 1st Respondent deposes that the 3rd Respondent is a Suffragan Bishop of the Anglican Church of Kenya whose office is acquired through appointment and not election. He refers to the provisions of the Church Constitution governing Suffragan Bishops and states that a Suffragan Bishop is eligible for election as a Diocesan Bishop and may be transferred from one diocese to another. He therefore contends that the Applicants have no basis for seeking the removal of the 3rd Respondent from Kapenguria Diocese or from any other diocese, as the transfer and deployment of bishops, clergy and church staff fall within his administrative prerogative as Archbishop. He further states that if the Applicants were aggrieved by the deployment of the 3rd Respondent, they ought to have pursued the grievance through the internal mechanisms established under the Church Constitution rather than instituting court proceedings. He maintains that although the geographical area previously served by the 3rd Respondent as Suffragan Bishop became part of the Diocese of Kapenguria after its creation, the 3rd Respondent was never deployed by him or by the Archbishop's Commissary to work in the Diocese of Kapenguria.
8 The Archbishop contends that the Constitution does not recognize a transition committee and that upon creation of Kapenguria Diocese, authority over the new Diocese vested in him as Archbishop and Metropolitan. He maintains that neither the Standing Committee of Kitale Diocese nor the alleged transition committee had authority to direct the affairs of the new Diocese and accuses the Applicants of obstructing its proper administration and that the suit does not disclose any reasonable cause of action.
9 He further avers that the Constitution expressly empowers him to appoint a Commissary to oversee a newly created Diocese pending election of a substantive Bishop and therefore the appointment of the 2nd Respondent was lawful and constitutional and that the 2nd Respondent possesses full episcopal authority within the diocese till a substantive bishop is elected and enthroned with the diocese till a substantive Bishop is elected and enthroned. He traces the current divisions within the Diocese to factional disputes arising from the earlier election of the Bishop of Kitale where there were opposing factions that have persisted and denies responsibility for those divisions.
10 The Archbishop accuses the Applicants of resisting reconciliation efforts made by him, refusing lawful church authority, declining transfers and bypassing internal church disciplinary mechanisms; that the 2nd to 5th Applicants who are ordained clergies have refused to submit to the lawful authority of the church and have not come to court with clean hands. He states that parish councils, church councils and Synod structures have already been established, that elections were successfully conducted in twenty-five out of twenty-eight parishes and that the Diocese is progressing towards the election of its first Bishop. He concludes that the suit is intended merely to delay and frustrate the constitutional process.
11 The 1st Respondent deposed that the next step would have been declaration of a vacancy in the diocese and commencement of nomination process in which he has no role to handpick anybody; that vetting is done by a search committee and then presented to the electoral college; that his role is to ensure compliance with the constitutional process.
2nd Respondent’s Replying Affidavit
12 The 2nd Respondent swore an affidavit dated 24/2/2026, the Archbishop’s Commissary, similarly contends that the Constitution of the Anglican Church of Kenya does not provide for the creation of a transition committee and that authority over Kapenguria Diocese vested exclusively in the Archbishop upon its creation. He maintains that any administration of the Diocese must be undertaken under the authority of the Archbishop and in accordance with the Constitution. He was not therefore not bound by acts, resolutions or decisions of the transitional committee being an unconstitutional body.
13 He further argues that the present suit substantially overlaps with earlier litigation involving disputes within the Diocese and raises the risk of conflicting judicial determinations. He relies on his appointment letter as evidence that he was lawfully appointed as Archbishop’s Commissary to provide episcopal, administrative and pastoral oversight pending election of a substantive Bishop. He deposes that in the creation of Kapenguria diocese, clergy who had been serving in Kitale diocese were given the option of remaining or moving to Kapenguria and as a result there was need for fresh staffing and redeployment of priests to operationalize the new diocese.
14 The 2nd Respondent attributes the existing conflicts within the Diocese to factional disputes predating his appointment and denies any wrongdoing. He avers that church structures, parish councils and Synod organs have been established, that twenty-five out of twenty-eight parishes elected Synod representatives, and that the next constitutional step is the declaration of the Diocese as vacant followed by commencement of the bishop-election process. He deponed that efforts had been made by the 1st Respondent reunite the rival groups and reopen the church, but the Applicants resisted the efforts. He urges dismissal of the Application.
3rd Respondent’s Replying Affidavit
15 The 3rd Respondent swore a replying affidavit dated 24/2/2026 in which he denies that the Application discloses any cause of action against him. He explains that he was consecrated as a Suffragan Bishop in 2017 while the Kapenguria area was still part of Kitale Diocese and that the creation of Kapenguria Diocese did not automatically make him its Diocesan Bishop.
16 He states that following the creation of the new Diocese, he was never assigned duties within Kapenguria by either the Archbishop or the Archbishop’s Commissary and therefore has not exercised authority over the Diocese. He also contends that any grievances against him ought to have been pursued through church dispute-resolution structures rather than through court proceedings.
17 The 3rd Respondent specifically denies holding himself out as Bishop of Kapenguria or organizing fundraisers in that capacity. He attributes documents portraying him as such to third parties acting without his authority. He further attributes internal disputes in St. Andrew’s Church Kapenguria Parish largely to clergy transfer disagreements and not to his own actions. He urges dismissal of the suit as against him.
Applicants’ Further Affidavit
18 In reply Laban Korellach Arupe swore a further affidavit dated 29/7/2026 in response to the Respondents’ affidavit. The Applicants reaffirmed that the Provincial Synod approved the creation of Kapenguria Diocese and that a sixteen-member transition committee was lawfully appointed by the Standing Committee of Kitale Diocese to facilitate the Diocese’s operationalization. They reject the contention that the committee was unconstitutional, arguing that it arose from decisions made within church structures after the Diocese was created.
19 The Applicants maintain that Canon I Rule 13 required the Archbishop to convene the Synod of the newly created Diocese so that members of the Standing Committee of Synod could be elected and thereafter participate in the election of the first Bishop. They accuse the Archbishop of failing to discharge that constitutional obligation and contend that the Diocese has remained without a substantive Bishop because of that failure.
20 They further reiterate their challenge to the appointment of the 2nd Respondent as Commissary and maintain that previous suits cited by the Respondents involve different parties and issues. They continue to blame the Respondents for divisions within the Diocese and maintain that any election process undertaken without compliance with the Constitution would be invalid and would render the suit nugatory. Accordingly, they urge the Court to preserve the subject matter pending determination of the suit.
Applicant’s submissions
21 The Applicants submit that the present suit is not barred by section 6 of the Civil Procedure Act. They argue that Kapenguria PMCC No. E001 of 2023 concerns different parties, different causes of action and different reliefs from those sought in the present suit. According to them, the lower court matter relates to disputes involving ACK Emmanuel Nasokol Parish and the transfer of its vicar, whereas the present suit concerns the constitutional process for electing the first Bishop of the Diocese of Kapenguria. They therefore contend that the requirements of sub judice have not been met.
22 Relying on the Supreme Court decision in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 Others (2020) eKLR, the Applicants submit that for the doctrine of sub judice to apply, there must be substantially the same parties and issues in both proceedings. They argue that those elements are absent in the present case as the parties, courses of action and remedies sought are materially different.
23 The Applicants submit that they have satisfied the principles in Giella v Cassman Brown [1973] EA 358 and Mrao Ltd v First American Bank [2003] KLR 125. They contend that the Provincial Synod approved the creation of Kapenguria Diocese and directed the Archbishop to oversee the process leading to the election of its first Bishop. A transition committee was thereafter appointed and commenced preparations for operationalization of the Diocese.
24 Their principal grievance is that despite the constitutional requirements under Canon 1 Rule 13(a) and (b), the Archbishop failed to convene the newly created Diocesan Synod and facilitate the election of the sixteen members of the Standing Committee of Synod who would ultimately form part of the Electoral College responsible for electing the first Bishop. They argue that the continued absence of a substantive Bishop several years after creation of the Diocese demonstrates a failure to comply with the Constitution.
25 The Applicants submit that once Kapenguria Diocese became operational, the 3rd Respondent, being a Suffragan Bishop of Kitale Diocese, ought to have been redeployed elsewhere or returned to Kitale Diocese. They contend that his continued presence and involvement in diocesan affairs fostered divisions and gave rise to public perceptions that he was the Bishop of Kapenguria. They rely on church correspondence and programmes to support that contention.
26 The Applicants challenge the appointment of the 2nd Respondent as Archbishop’s Commissary. They submit that Article 1 Rule 7 of the Church Constitution defines a Commissary as a lay or clerical person authorized to represent a Bishop. Since the 2nd Respondent is himself a Diocesan Bishop, they argue that he falls outside that definition and his appointment was therefore unconstitutional. Consequently, all actions undertaken by him regarding the election process are also impugned.
27 The Applicants dispute the Respondents’ assertion that synod elections were conducted in twenty-five out of twenty-eight parishes. They submit that no documentary evidence, such as minutes, voter registers, election returns or lists of elected representatives, has been produced to demonstrate that those elections took place. They argue that the alleged constitution of the Synod and Electoral College is unsupported and unlawful.
28 The Applicants submit that unless restrained, the Respondents may proceed with an unconstitutional process culminating in the election of a Bishop. They argue that once such an election occurs, the suit will be rendered nugatory because the Diocese will have been saddled with a Bishop elected through a disputed process. They maintain that the Diocese has functioned without a substantive Bishop for several years and therefore no prejudice will arise from preserving the status quo pending the hearing of the suit. Accordingly, they contend that irreparable harm has been demonstrated and that the balance of convenience favours granting the injunction sought.
Respondents’ Submissions
29 The Respondents submit that the suit is incompetent, sub judice and an abuse of court process. They rely on Kapenguria PMCC No. E001 of 2023 and Kapenguria HCCC No. 45 of 2025 and argue that the disputes arise from the same church governance issues affecting ACK Kapenguria Diocese. They contend that the Applicants are attempting to litigate matters already pending before competent courts, thereby exposing the judicial process to the risk of conflicting decisions.
30 They rely on Walter Were v Rashid Mukhwana Muhudi, Kitale Elc 2/2022 Njuguna Gathoo v Samuel Gathuka Njuguna [2015] eKLR and Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd [2009] eKLR , submitting that parallel litigation amounts to forum shopping and abuse of court process.
31 The Respondents argue that the only substantive prayer remaining for determination is Prayer No. 4 seeking to restrain them from interfering with the management and administration of the Diocese. They submit that granting such an order would effectively remove the lawful constitutional leadership of the Diocese and create a leadership vacuum. According to them, the Archbishop is constitutionally mandated to oversee the Diocese until a substantive Bishop is elected and therefore cannot be restrained from carrying out those duties.
32 They further argue that the prayer contradicts the Applicants’ own pleadings, which acknowledge that the Archbishop is responsible for convening the Synod and directing the election process.
33 The Respondents submit that the Constitution of the Anglican Church of Kenya contains no provision establishing a transition committee or assigning such a body any role in the election of a Bishop. They argue that the Applicants are attempting to introduce institutions and procedures unknown to the Church Constitution and compel the Court to recognize them.
34 The Respondents rely on Articles VI, I (7) and Canon I Rule 14 of the Church Constitution and submit that once Kapenguria Diocese was created, authority vested in the Archbishop to organize the Diocese, convene the Synod and facilitate the election of a Bishop. They argue that the appointment of the 2nd Respondent as Archbishop’s Commissary was lawful and constitutionally sanctioned.
35 According to them, all restructuring, staffing and administrative measures undertaken within the Diocese were necessary preparatory steps for the eventual election of a Bishop.
36 The Respondents submit that the constitutional electoral process begins with parish-level elections through which Synod members are elected. They assert that twenty-five out of twenty-eight parishes conducted elections and submitted lists of elected representatives. They emphasize that neither the Archbishop nor the Commissary conducts those elections; rather, they are supervised by parish priests. Consequently, the Applicants cannot attribute any alleged irregularities in parish elections to the Respondents.
37 The Respondents explain that following the creation of Kapenguria Diocese, clergy had to be redistributed because some elected to remain in Kitale Diocese while others joined Kapenguria Diocese. They submit that restructuring and transfers were lawful administrative measures necessary to ensure effective staffing of parishes and facilitate constitutional diocesan structures. They further contend that some of the issues concerning transfers are already pending before the Employment and Labour Relations Court and should not be litigated in the present suit.
38 The Respondents submit that the Applicants have misunderstood the constitutional role of a Suffragan Bishop. Relying on provisions of the Church Constitution, i.e., Article XII (5) (a) and (b), they argue that a Suffragan Bishop does not automatically cease serving merely because a new Diocese is created and remains eligible for transfer or election elsewhere. They maintain that there is no constitutional requirement that the 3rd Respondent leave Kapenguria upon creation of the Diocese.
39 They further contend that no evidence has been produced showing that the 3rd Respondent has acted as Bishop of Kapenguria or exercised any unlawful authority within the Diocese.
Respondents’ Supplementary Submissions
40 The Respondents reiterate that the suit substantially overlaps with Kapenguria SPM Civil Case No. E001 of 2023 and that allowing both suits to proceed risks contradictory decisions. They argue that all parties are members of the same church community and their disputes stem from the same governance issues affecting the Diocese.
41 They further submit that the Applicants have not provided evidence that the 3rd Respondent selected Synod members or Electoral College representatives. According to them, the elections were undertaken by parish members and supervised by parish priests, making the Applicants’ allegations speculative and unsupported.
42 The Respondents also contend that there is no evidence that the 3rd Respondent was authorized to administer or manage Kapenguria Diocese and argue that the Applicants are effectively seeking to undermine the constitutional authority of the Archbishop.
43 Finally, they submit that transfer disputes are already the subject of ongoing ELRC proceedings, that the transition committee has no constitutional basis, and that any reliance on it is misplaced; that the Applicants have failed to prove any unlawful conduct on the part of the Respondents. They therefore urge the Court to dismiss both the Application and the suit with costs.
Issues for Determination
44 Having carefully considered the Application dated 24th February 2026, the affidavits on record, the rival submissions by counsel and the authorities cited, the Court is of the view that the following issues arise for determination:
i. The first issue is whether the present suit and Application are barred by the doctrine of sub judice and amounts to an abuse of the court process.
ii. Whether the Applicants have demonstrated the ingredients necessary for the grant of an injunction;
a) whether the Applicants have established a prima facie case with a probability of success;
b) Whether the Applicants have demonstrated that they stand to suffer irreparable injury incapable of being adequately compensated by an award of damages if the orders sought are not granted and
c) Where does the balance of convenience lie.
iii. Lastly, costs.
Analysis
45 The Respondents have invited this Court, as a preliminary issue, to find that the suit and the Application are sub judice in view of the existence of Kapenguria PMCC No. E001 of 2023 and other proceedings touching on disputes within the Anglican Church of Kenya Diocese of Kapenguria. Their argument is that the present proceedings concern the same parties and substantially the same issues as those already pending before another court. They further contend that the Applicants are members of the same congregation involved in earlier litigation and that permitting the present proceedings to continue may result in conflicting decisions.
46 The law relating to sub judice is settled. Section 6 of the Civil Procedure Act prohibits a court from proceeding with a matter where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title before a court having jurisdiction. As observed by the Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling), for the doctrine to apply there must be more than one suit, the suits must involve substantially the same subject matter, they must be between the same parties or their privies and the earlier suit must be pending before a court of competent jurisdiction.
47 I have carefully considered the material presented by both sides concerning Kapenguria SPM Civil Case No. E001 of 2023. While there is no doubt that both matters arise within the broader context of disputes affecting the Anglican Church of Kenya Diocese of Kapenguria, the parties are not the same. The prayers sought are also materially different. The lower court suit concerns the affairs of ACK Emmanuel Nasokol Parish and the legality of actions affecting a specific congregation and clergy deployment. The present suit challenges the constitutionality of the process adopted towards the election of the first Bishop of the Diocese of Kapenguria and seeks declarations touching on the powers and responsibilities of the Archbishop, the Archbishop's Commissary and the Suffragan Bishop in the transition process.
48 Although there may be some factual overlap, I am not persuaded that the issues are directly and substantially the same. Neither am I satisfied that the parties are litigating under the same title as contemplated under section 6 of the Civil Procedure Act. The requirements necessary for invocation of the doctrine of sub judice have therefore not been established. Consequently, the Respondents' objection on that ground fails.
49 Turning to the merits of the application, the applicable principles are those established in Giella v Cassman Brown & Co. Ltd [1973] EA 358, namely, that an applicant must establish a prima facie case with a probability of success; demonstrate that irreparable injury will be suffered if the order is not granted and, where the court is in doubt, show that the balance of convenience favours the grant of the relief. The meaning of a prima facie case was explained in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) (7 March 2003) (Judgment), where the Court of Appeal held that a prima facie case in civil applications requires a higher evidentiary standard than a merely genuine or arguable case. The court defined it as a case where the material and evidence presented demonstrate that a legal right has apparently been infringed by the opposing party in a manner that clearly calls for an explanation or rebuttal from them. To satisfy this threshold for an interlocutory injunction, the applicant cannot simply raise triable issues. The evidence must firmly establish a reasonable probability of ultimate success upon a full trial.
50 The Applicants' complaint is that following the creation of the Diocese of Kapenguria, the Archbishop failed to comply with the procedure prescribed under Canon 1 Rule 13 and Rule 14 of the Constitution of the Anglican Church of Kenya relating to the convening of the Synod, constitution of the Standing Committee of Synod and eventual election of the first Bishop. They further challenge the continued reliance on the 2nd Respondent as Archbishop's Commissary and contend that the 3rd Respondent ought not to continue playing any role in the affairs of the Diocese following its separation from Kitale Diocese.
51 The Respondents, on the other hand, maintain that the Constitution of the Anglican Church of Kenya does not provide for a transition committee and that all actions undertaken by the Archbishop and the 2nd Respondent have been carried out pursuant to constitutional authority vested in them. They contend that the Diocese automatically came under the metropolitan jurisdiction of the Archbishop upon its creation and that all restructuring measures undertaken were directed towards facilitating the eventual election of a Bishop.
52 It is evident from the pleadings before Court that substantial questions concerning the interpretation and implementation of the Constitution of the Anglican Church of Kenya have arisen. There is a genuine dispute as to whether the process adopted by the Respondents conforms to the constitutional framework governing the creation of a Diocese and the election of its first Bishop. There is also a dispute concerning the nature and legal status of the transition committee, the authority of the Archbishop's Commissary and the role of the 3rd Respondent within the Diocese of Kapenguria. These are not frivolous issues. Neither can they be resolved conclusively on affidavit evidence at this interlocutory stage. They are questions that call for interrogation at a full hearing. In those circumstances, I am satisfied that the Applicants have established a prima facie case with a probability of success.
53 The Court must next determine whether irreparable injury has been demonstrated. In Ngurumah Ltd -vs- Jan Bonde Nielsen and 2 others [2014] eKLR. The court held that irreparable injury is injury that cannot be adequately compensated by an award of damages and must be actual, substantial, imminent and not speculative. The Applicants contend that unless the Court intervenes, the Respondents may proceed with a process culminating in the election of a Bishop whose election would subsequently be challenged as unconstitutional. They argue that once such an election is conducted, the subject matter of the suit will effectively have been spent and the Diocese may be burdened with leadership obtained through a process later found to be contrary to the Church Constitution.
54 The Respondents argue that the election process has not yet commenced because the Diocese has not been declared vacant and that the Applicants' fears are speculative. However, the affidavits and submissions reveal that steps towards operationalising the electoral structures of the Diocese have already been undertaken and that the parties fundamentally disagree on the legality of those steps. In my view, the election of a Diocesan Bishop is not an ordinary administrative decision. It is th
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RULING
1 The Application before the Court is the Notice of Motion dated 24th February 2026 brought under the provisions of Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act, Order 40 Rules 1, 2, 3 and 4 of the Civil Procedure Rules and all other enabling provisions of the law, in which the Plaintiffs/Applicants seek the following orders:
a) Spent.
b) Spent.
c) That after the inter parties hearing and determination of the Application, this Honourable Court be pleased to extend the interim order of injunction issued on 25th February 2026 while pending the hearing and determination of the suit.
d) That the Defendants, their agents and/or servants be restrained from interfering with the management and running of the ACK Churches in the Diocese of Kapenguria while pending the hearing and determination of the suit herein and also while pending the election of the 1st Bishop of the Diocese of Kapenguria.
e) That costs of this Application be borne by the Respondents.
Applicants’ Case
2 The Applicants seek injunctive orders restraining the Respondents from interfering with the management and administration of the Diocese of Kapenguria and from proceeding with the process leading to the election of the first Bishop pending determination of the suit. They contend that after the Provincial Synod approved the creation of the Diocese of Kapenguria, the Archbishop was required to implement the Synod's decision and facilitate the election of the first Bishop strictly in accordance with the Constitution of the Anglican Church of Kenya. They allege that instead of following the constitutional process, the Archbishop departed from the prescribed procedure and failed to convene and constitute the required organs for the election.
3 The Applicants state that a sixteen-member transition committee was appointed to oversee the operationalization of the Diocese, including finances, staffing, administration of church assets and preparations for the election of the first Bishop. They complain that the Archbishop unlawfully disbanded that committee and replaced it with structures unknown to the Constitution. They further contend that the appointment of the 2nd Respondent as Archbishop’s Commissary was unconstitutional because a Commissary ought to be a lay or clerical person and not a diocesan bishop.
4 The Applicants also challenge the continued involvement of the 3rd Respondent within Kapenguria Diocese, asserting that upon creation of the Diocese he ought to have reverted to Kitale Diocese or been redeployed elsewhere. They allege that he continued to exercise authority within Kapenguria and was publicly portrayed as the Bishop of Kapenguria, thereby creating confusion and division among church members.
5 Further, the Applicants maintain that the Respondents improperly constituted the Synod and Electoral College without following the constitutional procedure and have failed to demonstrate that valid elections of Synod members were conducted. They argue that unless restrained, the Respondents may proceed with an unconstitutional process that could culminate in the election of a Bishop through a flawed procedure, rendering the suit nugatory. They assert that they have established a prima facie case, face irreparable harm, and that the balance of convenience favours preservation of the status quo.
1st Respondent’s Replying Affidavit
6 The 1st Respondent, the Archbishop of the Anglican Church of Kenya, opposes the Application through his replying affidavit dated 26/3/2026 and asserts that it is founded on a misunderstanding of the Church Constitution. He states that the 3rd Respondent is a Suffragan Bishop whose deployment falls within his administrative authority as Archbishop and that the Applicants ought to have utilized internal church dispute-resolution mechanisms if dissatisfied with his deployment. He further denies that the 3rd Respondent was deployed to serve in Kapenguria Diocese.
7 The 1st Respondent deposes that the 3rd Respondent is a Suffragan Bishop of the Anglican Church of Kenya whose office is acquired through appointment and not election. He refers to the provisions of the Church Constitution governing Suffragan Bishops and states that a Suffragan Bishop is eligible for election as a Diocesan Bishop and may be transferred from one diocese to another. He therefore contends that the Applicants have no basis for seeking the removal of the 3rd Respondent from Kapenguria Diocese or from any other diocese, as the transfer and deployment of bishops, clergy and church staff fall within his administrative prerogative as Archbishop. He further states that if the Applicants were aggrieved by the deployment of the 3rd Respondent, they ought to have pursued the grievance through the internal mechanisms established under the Church Constitution rather than instituting court proceedings. He maintains that although the geographical area previously served by the 3rd Respondent as Suffragan Bishop became part of the Diocese of Kapenguria after its creation, the 3rd Respondent was never deployed by him or by the Archbishop's Commissary to work in the Diocese of Kapenguria.
8 The Archbishop contends that the Constitution does not recognize a transition committee and that upon creation of Kapenguria Diocese, authority over the new Diocese vested in him as Archbishop and Metropolitan. He maintains that neither the Standing Committee of Kitale Diocese nor the alleged transition committee had authority to direct the affairs of the new Diocese and accuses the Applicants of obstructing its proper administration and that the suit does not disclose any reasonable cause of action.
9 He further avers that the Constitution expressly empowers him to appoint a Commissary to oversee a newly created Diocese pending election of a substantive Bishop and therefore the appointment of the 2nd Respondent was lawful and constitutional and that the 2nd Respondent possesses full episcopal authority within the diocese till a substantive bishop is elected and enthroned with the diocese till a substantive Bishop is elected and enthroned. He traces the current divisions within the Diocese to factional disputes arising from the earlier election of the Bishop of Kitale where there were opposing factions that have persisted and denies responsibility for those divisions.
10 The Archbishop accuses the Applicants of resisting reconciliation efforts made by him, refusing lawful church authority, declining transfers and bypassing internal church disciplinary mechanisms; that the 2nd to 5th Applicants who are ordained clergies have refused to submit to the lawful authority of the church and have not come to court with clean hands. He states that parish councils, church councils and Synod structures have already been established, that elections were successfully conducted in twenty-five out of twenty-eight parishes and that the Diocese is progressing towards the election of its first Bishop. He concludes that the suit is intended merely to delay and frustrate the constitutional process.
11 The 1st Respondent deposed that the next step would have been declaration of a vacancy in the diocese and commencement of nomination process in which he has no role to handpick anybody; that vetting is done by a search committee and then presented to the electoral college; that his role is to ensure compliance with the constitutional process.
2nd Respondent’s Replying Affidavit
12 The 2nd Respondent swore an affidavit dated 24/2/2026, the Archbishop’s Commissary, similarly contends that the Constitution of the Anglican Church of Kenya does not provide for the creation of a transition committee and that authority over Kapenguria Diocese vested exclusively in the Archbishop upon its creation. He maintains that any administration of the Diocese must be undertaken under the authority of the Archbishop and in accordance with the Constitution. He was not therefore not bound by acts, resolutions or decisions of the transitional committee being an unconstitutional body.
13 He further argues that the present suit substantially overlaps with earlier litigation involving disputes within the Diocese and raises the risk of conflicting judicial determinations. He relies on his appointment letter as evidence that he was lawfully appointed as Archbishop’s Commissary to provide episcopal, administrative and pastoral oversight pending election of a substantive Bishop. He deposes that in the creation of Kapenguria diocese, clergy who had been serving in Kitale diocese were given the option of remaining or moving to Kapenguria and as a result there was need for fresh staffing and redeployment of priests to operationalize the new diocese.
14 The 2nd Respondent attributes the existing conflicts within the Diocese to factional disputes predating his appointment and denies any wrongdoing. He avers that church structures, parish councils and Synod organs have been established, that twenty-five out of twenty-eight parishes elected Synod representatives, and that the next constitutional step is the declaration of the Diocese as vacant followed by commencement of the bishop-election process. He deponed that efforts had been made by the 1st Respondent reunite the rival groups and reopen the church, but the Applicants resisted the efforts. He urges dismissal of the Application.
3rd Respondent’s Replying Affidavit
15 The 3rd Respondent swore a replying affidavit dated 24/2/2026 in which he denies that the Application discloses any cause of action against him. He explains that he was consecrated as a Suffragan Bishop in 2017 while the Kapenguria area was still part of Kitale Diocese and that the creation of Kapenguria Diocese did not automatically make him its Diocesan Bishop.
16 He states that following the creation of the new Diocese, he was never assigned duties within Kapenguria by either the Archbishop or the Archbishop’s Commissary and therefore has not exercised authority over the Diocese. He also contends that any grievances against him ought to have been pursued through church dispute-resolution structures rather than through court proceedings.
17 The 3rd Respondent specifically denies holding himself out as Bishop of Kapenguria or organizing fundraisers in that capacity. He attributes documents portraying him as such to third parties acting without his authority. He further attributes internal disputes in St. Andrew’s Church Kapenguria Parish largely to clergy transfer disagreements and not to his own actions. He urges dismissal of the suit as against him.
Applicants’ Further Affidavit
18 In reply Laban Korellach Arupe swore a further affidavit dated 29/7/2026 in response to the Respondents’ affidavit. The Applicants reaffirmed that the Provincial Synod approved the creation of Kapenguria Diocese and that a sixteen-member transition committee was lawfully appointed by the Standing Committee of Kitale Diocese to facilitate the Diocese’s operationalization. They reject the contention that the committee was unconstitutional, arguing that it arose from decisions made within church structures after the Diocese was created.
19 The Applicants maintain that Canon I Rule 13 required the Archbishop to convene the Synod of the newly created Diocese so that members of the Standing Committee of Synod could be elected and thereafter participate in the election of the first Bishop. They accuse the Archbishop of failing to discharge that constitutional obligation and contend that the Diocese has remained without a substantive Bishop because of that failure.
20 They further reiterate their challenge to the appointment of the 2nd Respondent as Commissary and maintain that previous suits cited by the Respondents involve different parties and issues. They continue to blame the Respondents for divisions within the Diocese and maintain that any election process undertaken without compliance with the Constitution would be invalid and would render the suit nugatory. Accordingly, they urge the Court to preserve the subject matter pending determination of the suit.
Applicant’s submissions
21 The Applicants submit that the present suit is not barred by section 6 of the Civil Procedure Act. They argue that Kapenguria PMCC No. E001 of 2023 concerns different parties, different causes of action and different reliefs from those sought in the present suit. According to them, the lower court matter relates to disputes involving ACK Emmanuel Nasokol Parish and the transfer of its vicar, whereas the present suit concerns the constitutional process for electing the first Bishop of the Diocese of Kapenguria. They therefore contend that the requirements of sub judice have not been met.
22 Relying on the Supreme Court decision in Kenya National Commission on Human Rights v Attorney General; IEBC & 16 Others (2020) eKLR, the Applicants submit that for the doctrine of sub judice to apply, there must be substantially the same parties and issues in both proceedings. They argue that those elements are absent in the present case as the parties, courses of action and remedies sought are materially different.
23 The Applicants submit that they have satisfied the principles in Giella v Cassman Brown [1973] EA 358 and Mrao Ltd v First American Bank [2003] KLR 125. They contend that the Provincial Synod approved the creation of Kapenguria Diocese and directed the Archbishop to oversee the process leading to the election of its first Bishop. A transition committee was thereafter appointed and commenced preparations for operationalization of the Diocese.
24 Their principal grievance is that despite the constitutional requirements under Canon 1 Rule 13(a) and (b), the Archbishop failed to convene the newly created Diocesan Synod and facilitate the election of the sixteen members of the Standing Committee of Synod who would ultimately form part of the Electoral College responsible for electing the first Bishop. They argue that the continued absence of a substantive Bishop several years after creation of the Diocese demonstrates a failure to comply with the Constitution.
25 The Applicants submit that once Kapenguria Diocese became operational, the 3rd Respondent, being a Suffragan Bishop of Kitale Diocese, ought to have been redeployed elsewhere or returned to Kitale Diocese. They contend that his continued presence and involvement in diocesan affairs fostered divisions and gave rise to public perceptions that he was the Bishop of Kapenguria. They rely on church correspondence and programmes to support that contention.
26 The Applicants challenge the appointment of the 2nd Respondent as Archbishop’s Commissary. They submit that Article 1 Rule 7 of the Church Constitution defines a Commissary as a lay or clerical person authorized to represent a Bishop. Since the 2nd Respondent is himself a Diocesan Bishop, they argue that he falls outside that definition and his appointment was therefore unconstitutional. Consequently, all actions undertaken by him regarding the election process are also impugned.
27 The Applicants dispute the Respondents’ assertion that synod elections were conducted in twenty-five out of twenty-eight parishes. They submit that no documentary evidence, such as minutes, voter registers, election returns or lists of elected representatives, has been produced to demonstrate that those elections took place. They argue that the alleged constitution of the Synod and Electoral College is unsupported and unlawful.
28 The Applicants submit that unless restrained, the Respondents may proceed with an unconstitutional process culminating in the election of a Bishop. They argue that once such an election occurs, the suit will be rendered nugatory because the Diocese will have been saddled with a Bishop elected through a disputed process. They maintain that the Diocese has functioned without a substantive Bishop for several years and therefore no prejudice will arise from preserving the status quo pending the hearing of the suit. Accordingly, they contend that irreparable harm has been demonstrated and that the balance of convenience favours granting the injunction sought.
Respondents’ Submissions
29 The Respondents submit that the suit is incompetent, sub judice and an abuse of court process. They rely on Kapenguria PMCC No. E001 of 2023 and Kapenguria HCCC No. 45 of 2025 and argue that the disputes arise from the same church governance issues affecting ACK Kapenguria Diocese. They contend that the Applicants are attempting to litigate matters already pending before competent courts, thereby exposing the judicial process to the risk of conflicting decisions.
30 They rely on Walter Were v Rashid Mukhwana Muhudi, Kitale Elc 2/2022 Njuguna Gathoo v Samuel Gathuka Njuguna [2015] eKLR and Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd [2009] eKLR , submitting that parallel litigation amounts to forum shopping and abuse of court process.
31 The Respondents argue that the only substantive prayer remaining for determination is Prayer No. 4 seeking to restrain them from interfering with the management and administration of the Diocese. They submit that granting such an order would effectively remove the lawful constitutional leadership of the Diocese and create a leadership vacuum. According to them, the Archbishop is constitutionally mandated to oversee the Diocese until a substantive Bishop is elected and therefore cannot be restrained from carrying out those duties.
32 They further argue that the prayer contradicts the Applicants’ own pleadings, which acknowledge that the Archbishop is responsible for convening the Synod and directing the election process.
33 The Respondents submit that the Constitution of the Anglican Church of Kenya contains no provision establishing a transition committee or assigning such a body any role in the election of a Bishop. They argue that the Applicants are attempting to introduce institutions and procedures unknown to the Church Constitution and compel the Court to recognize them.
34 The Respondents rely on Articles VI, I (7) and Canon I Rule 14 of the Church Constitution and submit that once Kapenguria Diocese was created, authority vested in the Archbishop to organize the Diocese, convene the Synod and facilitate the election of a Bishop. They argue that the appointment of the 2nd Respondent as Archbishop’s Commissary was lawful and constitutionally sanctioned.
35 According to them, all restructuring, staffing and administrative measures undertaken within the Diocese were necessary preparatory steps for the eventual election of a Bishop.
36 The Respondents submit that the constitutional electoral process begins with parish-level elections through which Synod members are elected. They assert that twenty-five out of twenty-eight parishes conducted elections and submitted lists of elected representatives. They emphasize that neither the Archbishop nor the Commissary conducts those elections; rather, they are supervised by parish priests. Consequently, the Applicants cannot attribute any alleged irregularities in parish elections to the Respondents.
37 The Respondents explain that following the creation of Kapenguria Diocese, clergy had to be redistributed because some elected to remain in Kitale Diocese while others joined Kapenguria Diocese. They submit that restructuring and transfers were lawful administrative measures necessary to ensure effective staffing of parishes and facilitate constitutional diocesan structures. They further contend that some of the issues concerning transfers are already pending before the Employment and Labour Relations Court and should not be litigated in the present suit.
38 The Respondents submit that the Applicants have misunderstood the constitutional role of a Suffragan Bishop. Relying on provisions of the Church Constitution, i.e., Article XII (5) (a) and (b), they argue that a Suffragan Bishop does not automatically cease serving merely because a new Diocese is created and remains eligible for transfer or election elsewhere. They maintain that there is no constitutional requirement that the 3rd Respondent leave Kapenguria upon creation of the Diocese.
39 They further contend that no evidence has been produced showing that the 3rd Respondent has acted as Bishop of Kapenguria or exercised any unlawful authority within the Diocese.
Respondents’ Supplementary Submissions
40 The Respondents reiterate that the suit substantially overlaps with Kapenguria SPM Civil Case No. E001 of 2023 and that allowing both suits to proceed risks contradictory decisions. They argue that all parties are members of the same church community and their disputes stem from the same governance issues affecting the Diocese.
41 They further submit that the Applicants have not provided evidence that the 3rd Respondent selected Synod members or Electoral College representatives. According to them, the elections were undertaken by parish members and supervised by parish priests, making the Applicants’ allegations speculative and unsupported.
42 The Respondents also contend that there is no evidence that the 3rd Respondent was authorized to administer or manage Kapenguria Diocese and argue that the Applicants are effectively seeking to undermine the constitutional authority of the Archbishop.
43 Finally, they submit that transfer disputes are already the subject of ongoing ELRC proceedings, that the transition committee has no constitutional basis, and that any reliance on it is misplaced; that the Applicants have failed to prove any unlawful conduct on the part of the Respondents. They therefore urge the Court to dismiss both the Application and the suit with costs.
Issues for Determination
44 Having carefully considered the Application dated 24th February 2026, the affidavits on record, the rival submissions by counsel and the authorities cited, the Court is of the view that the following issues arise for determination:
i. The first issue is whether the present suit and Application are barred by the doctrine of sub judice and amounts to an abuse of the court process.
ii. Whether the Applicants have demonstrated the ingredients necessary for the grant of an injunction;
a) whether the Applicants have established a prima facie case with a probability of success;
b) Whether the Applicants have demonstrated that they stand to suffer irreparable injury incapable of being adequately compensated by an award of damages if the orders sought are not granted and
c) Where does the balance of convenience lie.
iii. Lastly, costs.
Analysis
45 The Respondents have invited this Court, as a preliminary issue, to find that the suit and the Application are sub judice in view of the existence of Kapenguria PMCC No. E001 of 2023 and other proceedings touching on disputes within the Anglican Church of Kenya Diocese of Kapenguria. Their argument is that the present proceedings concern the same parties and substantially the same issues as those already pending before another court. They further contend that the Applicants are members of the same congregation involved in earlier litigation and that permitting the present proceedings to continue may result in conflicting decisions.
46 The law relating to sub judice is settled. Section 6 of the Civil Procedure Act prohibits a court from proceeding with a matter where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties or parties litigating under the same title before a court having jurisdiction. As observed by the Supreme Court in Kenya National Commission on Human Rights v Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties) (Advisory Opinion Reference 1 of 2017) [2020] KESC 54 (KLR) (Constitutional and Human Rights) (7 February 2020) (Ruling), for the doctrine to apply there must be more than one suit, the suits must involve substantially the same subject matter, they must be between the same parties or their privies and the earlier suit must be pending before a court of competent jurisdiction.
47 I have carefully considered the material presented by both sides concerning Kapenguria SPM Civil Case No. E001 of 2023. While there is no doubt that both matters arise within the broader context of disputes affecting the Anglican Church of Kenya Diocese of Kapenguria, the parties are not the same. The prayers sought are also materially different. The lower court suit concerns the affairs of ACK Emmanuel Nasokol Parish and the legality of actions affecting a specific congregation and clergy deployment. The present suit challenges the constitutionality of the process adopted towards the election of the first Bishop of the Diocese of Kapenguria and seeks declarations touching on the powers and responsibilities of the Archbishop, the Archbishop's Commissary and the Suffragan Bishop in the transition process.
48 Although there may be some factual overlap, I am not persuaded that the issues are directly and substantially the same. Neither am I satisfied that the parties are litigating under the same title as contemplated under section 6 of the Civil Procedure Act. The requirements necessary for invocation of the doctrine of sub judice have therefore not been established. Consequently, the Respondents' objection on that ground fails.
49 Turning to the merits of the application, the applicable principles are those established in Giella v Cassman Brown & Co. Ltd [1973] EA 358, namely, that an applicant must establish a prima facie case with a probability of success; demonstrate that irreparable injury will be suffered if the order is not granted and, where the court is in doubt, show that the balance of convenience favours the grant of the relief. The meaning of a prima facie case was explained in Mrao Ltd v First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) (7 March 2003) (Judgment), where the Court of Appeal held that a prima facie case in civil applications requires a higher evidentiary standard than a merely genuine or arguable case. The court defined it as a case where the material and evidence presented demonstrate that a legal right has apparently been infringed by the opposing party in a manner that clearly calls for an explanation or rebuttal from them. To satisfy this threshold for an interlocutory injunction, the applicant cannot simply raise triable issues. The evidence must firmly establish a reasonable probability of ultimate success upon a full trial.
50 The Applicants' complaint is that following the creation of the Diocese of Kapenguria, the Archbishop failed to comply with the procedure prescribed under Canon 1 Rule 13 and Rule 14 of the Constitution of the Anglican Church of Kenya relating to the convening of the Synod, constitution of the Standing Committee of Synod and eventual election of the first Bishop. They further challenge the continued reliance on the 2nd Respondent as Archbishop's Commissary and contend that the 3rd Respondent ought not to continue playing any role in the affairs of the Diocese following its separation from Kitale Diocese.
51 The Respondents, on the other hand, maintain that the Constitution of the Anglican Church of Kenya does not provide for a transition committee and that all actions undertaken by the Archbishop and the 2nd Respondent have been carried out pursuant to constitutional authority vested in them. They contend that the Diocese automatically came under the metropolitan jurisdiction of the Archbishop upon its creation and that all restructuring measures undertaken were directed towards facilitating the eventual election of a Bishop.
52 It is evident from the pleadings before Court that substantial questions concerning the interpretation and implementation of the Constitution of the Anglican Church of Kenya have arisen. There is a genuine dispute as to whether the process adopted by the Respondents conforms to the constitutional framework governing the creation of a Diocese and the election of its first Bishop. There is also a dispute concerning the nature and legal status of the transition committee, the authority of the Archbishop's Commissary and the role of the 3rd Respondent within the Diocese of Kapenguria. These are not frivolous issues. Neither can they be resolved conclusively on affidavit evidence at this interlocutory stage. They are questions that call for interrogation at a full hearing. In those circumstances, I am satisfied that the Applicants have established a prima facie case with a probability of success.
53 The Court must next determine whether irreparable injury has been demonstrated. In Ngurumah Ltd -vs- Jan Bonde Nielsen and 2 others [2014] eKLR. The court held that irreparable injury is injury that cannot be adequately compensated by an award of damages and must be actual, substantial, imminent and not speculative. The Applicants contend that unless the Court intervenes, the Respondents may proceed with a process culminating in the election of a Bishop whose election would subsequently be challenged as unconstitutional. They argue that once such an election is conducted, the subject matter of the suit will effectively have been spent and the Diocese may be burdened with leadership obtained through a process later found to be contrary to the Church Constitution.
54 The Respondents argue that the election process has not yet commenced because the Diocese has not been declared vacant and that the Applicants' fears are speculative. However, the affidavits and submissions reveal that steps towards operationalising the electoral structures of the Diocese have already been undertaken and that the parties fundamentally disagree on the legality of those steps. In my view, the election of a Diocesan Bishop is not an ordinary administrative decision. It is th
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