A. The petition.
1. The Petitioner herein Rev. Gordon Ouma Opiyo commenced the present proceedings vide the amended petition dated 17th December, 2024 in which he seeks the following reliefs;
a. A declaration that the actions of the 2nd and 4th Respondents in failing to organize and call for elections to fill the vacant position of the Episcopal See of the Diocese of Maseno East were in violation of the constitutions of the Church and the Diocese as well as the law and by extension the freedom of association in Article 36 of the Constitution of Kenya, 2010.
b. A declaration that the actions of the 5th Respondent of refusing to interview the Petitioner following his nomination to run for the vacant position of the Episcopal See of the Diocese of Maseno East amounted to undignified and disrespectful treatment of the Petitioner in violation his inherent right under Article 28 of the Constitution and a violation of his right to fair administrative action that Article 47 of the Constitution guarantees.
c. A declaration that the actions of the 5th Respondent of refusing to interview the Petitioner following his nomination to run for the vacant position of the Episcopal See of the Diocese of Maseno East along with the other nominees violated the Petitioner's freedom from discrimination enshrined in Articles 10 and 27(5) of the Constitution.
d. A declaration that the actions of the 5th Respondent of ignoring the Petitioner's advocate's letter seeking information regarding the events of the 2nd November, 2024 and the failure to give reasons for the decision were a violation of the Petitioner's right of access to information guaranteed under Article 35(1)(b), amounted to disrespectful and undignified treatment of the Petitioner in violation his inherent right under Article 28 of the Constitution and constituted a violation of the Petitioner's right to fair administrative action that Article 47 of the Constitution guarantees.
e. A declaration that the decision by the 4th Respondent to surrender the duty to receive nomination papers of candidates for the vacant See of the Diocese of Maseno East to the office of the 6th Respondent violated the Petitioner's right to fair administrative action that statute law and Article 47 of the Constitution guarantee.
f. A declaration that the decision to allow the 6th Respondent to submit his candidature and to run for the position of the vacant See of the Diocese of Maseno East while still serving in the positions that he holds in the 3rd Respondent is a violation of the Petitioner's constitutional rights in Articles 36 and 47 of the Constitution.
g. A declaration that the election of REV. BENARD OTIENO OWUOR, the 6TH RESPONDENT on the 30th November, 2024 as the Second Bishop of the Diocese of Maseno East of the Anglican Church of Kenya was so conducted in in violation of the Petitioner's constitutional rights and of the law and was therefore null and void and of no consequence.
h. An order of certiorari removing into the High Court the proceedings of the 2nd November, 2024 of the Search Committee chaired by the 5th Respondent for the position of the vacant See of the Diocese of Maseno East and on such removal, the proceedings and the decision made thereat be quashed.
i. An order of certiorari removing into the High Court the contents of the letter dated 4th November, 2024 by the 7th Respondent and in such removal the same be and the decision contained therein be quashed.
j. An order of mandamus or a mandatory injunction directing the 5th Respondent to furnish the Petitioner with all the information that the Petitioner requested for vide his advocate's letter dated 7th November, 2024
k. An order of prohibition barring the Respondents or any of them from proceeding with the election of the 2nd Bishop of the See of the Diocese of Maseno East of the Anglican Church of Kenya on the 30th November, 2024 or any other date in violation of the Constitutions of the Anglican Church of Kenya and of the Diocese of Maseno East and in violation of the law and the Petitioner's rights.
l. A permanent injunction restraining the Respondents from proceeding with the election of the 2nd Bishop of the See of the Diocese of Maseno East of the Anglican Church of Kenya on the 30th November, 2024 or any other date in violation of the Constitutions of the Anglican Church of Kenya and of the Diocese of Maseno East and in violation of the law and the Petitioner's rights.
m. A permanent injunction restraining the Respondents or any of them, whether by themselves, their agents, servants or anyone claiming through them or acting at their instance, from proceeding with the consecration and enthronement of REV. BENARD OTIENO OWUOR, the 6TH RESPONDENT as the Second Bishop of the Diocese of Maseno East of the Anglican Church of Kenya.
n. A permanent injunction restraining the REV. BENARD OTIENO OWUOR, the 6TH RESPONDENT from taking over the office of the Second Bishop of the Diocese of Maseno East of the Anglican Church of Kenya or discharging any of the functions of that office.
o. General damages for the malicious and mala fide contravention of Petitioner's constitutional and legal rights.
p. Costs of this petition to be paid by the Respondents.
B. The Petitioner’s supporting affidavit.
2. In his affidavit in support of the Petition sworn on 27th November, 2024, the Petitioner states that at the material time, he was serving as a priest of the Anglican Church of Kenya (ACK) Diocese of Kajiado. The Petitioner annexed to his affidavit as “GOO1” copies of his Licences to Officiate and Certificate of Ordination.
3. The Petitioner avers that with effect from 15th July, 2024, the Episcopal See of the Diocese of Maseno East (“DME”), one of the dioceses of the ACK, fell vacant following the retirement of the immediate former Bishop, the Rt. Rev. Joshua Owiti Ouma, upon attaining the mandatory retirement age of sixty-five years as stipulated under the Constitution of the ACK and that of the DME. The Petitioner annexed copies of the said constitutions to his affidavit, marked GOO2 and GOO3 respectively.
4. The Petitioner further deposes in his affidavit that both constitutions expressly require that, upon the office of Bishop becoming vacant by reason of retirement, the process of electing a successor must commence no later than three months prior to the effective date of the outgoing Bishop’s retirement and be finalized no later than one month before the actual date of retirement.
5. The Petitioner further avers that the 3rd Respondent, in his capacity as the Diocesan Chancellor, without any reasonable justification, contravened the aforesaid provisions of the two constitutions by issuing a letter dated 9th September, 2024 purporting to notify members of the Diocesan Synod and the members of the Provincial Standing Committee of Synod of the Church of the existence of the vacancy and outlining the procedure for the nomination of persons seeking to fill the same. The said letter further directed that all applications and nomination papers be submitted to his office on or before 8th October, 2024. The letter is annexed to the affidavit as GOO4.
6. The Petitioner avers that he duly secured nomination for the vacant bishopric position in accordance with the procedures set out in the two constitutions and prepared his nomination papers – annexed to his affidavit as GOO5. He further states that on 3rd October, 2024, while en route to submit his nomination papers and the accompanying documents pursuant to the 3rd Respondent’s letter dated 9th September, 2024, he was informed by the 3rd Respondent via telephone that his office, described in the said letter as Elgon Court, Suite D3, Nairobi, would not receive the Petitioner’s documents. The Petitioner was instead advised to submit the documents to the Diocesan Head Office in Ahero, Kisumu, which advice necessitated his travel to Kisumu, where he lodged the documents at the office of the Diocesan Administrative Secretary on 4th October, 2024.
7. The Petitioner further deposes in his affidavit that, pursuant to the two constitutions, the 6th Respondent, in his capacity as the Clerical Secretary of the Synod, was directly involved, together with the Lay Secretaries of the Synod and the 3rd Respondent, in verifying the authenticity of the nominations and confirming that the prospective candidates had been duly nominated. The Petitioner further states that the 2nd Respondent, by a letter dated 8th October, 2024 (annexture GOO6), constituted a Search Committee chaired by the 5th Respondent in accordance with Article XI(8) of the Constitution of the ACK and Article VIII(9) of the Constitution of the DME.
8. The Petitioner avers that thereafter, the 2nd Respondent, by way of an email dated 29th October, 2024 (annexture GOO7), invited him to appear before the Search Committee on 2nd November, 2024 at 10:00 a.m. at St. Peter’s Cathedral, Ahero, in the company of his spouse and with all his original certificates. He further states that when he and his spouse presented themselves before the Search Committee on the appointed date, he was turned away by the 5th Respondent on the ground that the documents he had submitted contained unresolved issues and that he would consequently not be interviewed.
9. The Petitioner avers that the particulars and/or specifics of the alleged unresolved issues were not disclosed to him, notwithstanding his requests for formal communication in that regard.
10. The Petitioner further avers in his affidavit that he instructed his Counsel, who on 7th November, 2024 sent a letter (annexture GOO8) demanding that the Petitioner be provided with certified copies of the minutes of the Search Committee meeting held on 2nd November, 2024, details of the members of the Search Committee, particulars of the nominees for the vacant position and a formal communication to the Archbishop and Diocesan Chancellor explaining the reasons for the removal of his name from the list of nominees. The Petitioner avers that this request/demand was not met.
11. The Petitioner avers that he subsequently became aware that the 6th Respondent was also contesting the vacant position, notwithstanding that he held the office of Clerical Secretary of the Synod and that of Assistant Diocesan Administrative Secretary, positions to which all candidates submitted their nomination papers under the instructions of the 3rd Respondent, who was, by virtue of his office, responsible for verifying the nomination documents.
12. The Petitioner further states that, by virtue of holding the office of Assistant Diocesan Administrative Secretary, the 6th Respondent was required to be present at the bishop’s election in the absence of the substantive Diocesan Administrative Secretary. The Petitioner deposes that the 6th Respondent failed to disclose, at the material time, that he was himself an aspirant for the vacant position of the Episcopal See of the 4th Respondent.
13. In his further deposition, the Petitioner avers that the 3rd Respondent deliberately created a state of affairs that afforded the 6th Respondent an unfair advantage over the other candidates and placed him in a position of significant conflict of interest, whereby the 6th Respondent had early access to the Petitioner’s documents while simultaneously occupying a decision-making role in respect of an election in which he himself was a candidate.
14. The Petitioner further avers that, for the purposes of his candidature, he requested a recommendation letter from the 7th Respondent, having served in the Diocese for several years. However, upon receiving the letter from the 7th Respondent’s office (annexture GOO9), he was surprised to find that, in addition to providing a recommendation, the 7th Respondent (the Diocese of Kajiado, ‘DOK’) had discharged and released him entirely from the parish where he was a priest that was under the 7th Respondent, and directed him to hand over the parish. The stated reason for this action was that the Petitioner had sought advancement within the Church at the 4th Respondent by contesting the election for the vacant position at DME. The Petitioner avers that the act of discharging and releasing him without notice or an opportunity to be heard was intended to obstruct his attempt to contest the election, as the letter was issued around the same time that the Search Committee declined to interview him.
15. The Petitioner further deposes in his affidavit that, by contrast, in the year 2016, he was nominated to vie for the position of the inaugural Bishop of the DME and ultimately placed second. He states that prior to that election, the 7th Respondent readily issued him with a letter of recommendation (annexture GOO10) without formally discharging or releasing him from the DOK.
16. In his further deposition, the Petitioner maintains that, notwithstanding the alleged violations, the 5th Respondent nonetheless proceeded to submit to the 2nd Respondent the names three candidates being the 6th Respondent, The Venerable Hannington Oluoch Ondiek and The Venerable Bernard Ogolla Okullo as the duly shortlisted candidates for the election, thereby excluding the Petitioner’s name as a qualified candidate without providing him with any valid justification.
17. The Petitioner further avers in his affidavit that, in further compounding the violations alleged above, the 2nd Respondent, together with the 4th Respondent, proceeded to appoint an Electoral College and set 30th November, 2024 as the date for the election. The Electoral College included the Bishop of the DOK, Rt. Rev. Gaddiel K. Lenini, who had relieved the Petitioner of his duties at the DOK, as a member, pursuant to the 3rd Respondent’s letter dated 8th November, 2024 and a decree directing the said election, signed by the 2nd Respondent – collectively annexed as GOO11.
18. Following the developments in which the election slated for 30th November, 2024 was conducted and the 6th Respondent declared the winner, the Petitioner sought and was granted temporary conservatory orders on 2nd January, 2025. These orders restrained the Respondents, or any of them, whether acting personally, through their agents or servants, or by anyone claiming under them, from proceeding with the consecration and enthronement of the 6th Respondent as the Second Bishop of the DME of the ACK. The orders further restrained the 6th Respondent from assuming the office of Second Bishop of the DME of the ACK or performing any functions of that office. The conservatory orders have since remained in force.
19. The Petitioner deposes that the election of the 6th Respondent was carried out in a manner that violated the Petitioner’s constitutional rights, including his right to fair treatment, equal opportunity and due process as guaranteed under the Constitution.
20. The Petitioner further avers that the election process was tainted by procedural irregularities, conflicts of interest and non-compliance with the provisions of the Constitutions of the ACK and the DME, all of which undermined the integrity and legality of the election. By reason of these breaches, the Petitioner contends that the election of the 6th Respondent is null and void and ought not to be recognized, validated or allowed to stand under the law.
C. The 1st and 2nd Respondents’ replying affidavit.
21. The 1st and 2nd Respondents oppose the Petition and in that regard, filed a replying affidavit sworn on 22nd January, 2025 by Jackson Ole Sapit, the holder of the office of the 2nd Respondent. For purposes of clarity in this affidavit, I shall refer to the deponent as the 2nd Respondent.
22. The 2nd Respondent’s affidavit, as filed in the Case Tracking System, seems to be incomplete, as the second page, which was to contain paragraphs 4 to 9, is missing. Notwithstanding this omission, I shall address the contents that are available and extract the relevant information therein.
23. In his affidavit, the 2nd Respondent avers that the election of a Bishop of a particular Episcopal See or Diocese is governed under Article XI of the Constitution of the ACK, which prescribes the requirements and procedures for such elections.
24. The 2nd Respondent further states that, according to the Constitution of the ACK, the Search Committee constituted for the purpose of a bishopric election comprises twelve (12) members: six (6) selected from the Province of the ACK and six (6) selected from the Diocese whose bishopric is vacant.
25. The 2nd Respondent avers that the actions undertaken by the 5th Respondent, in his capacity as Chair of the Search Committee, in interviewing the validly nominated candidates were carried out in strict compliance with the procedural and constitutional guidelines prescribed by the Constitution of the ACK.
26. The 2nd Respondent acknowledges that the Petitioner’s Counsel wrote to him by way of a demand letter, which he received. Upon receipt, he instructed the Provincial Chancellor of the 1st Respondent to respond. The Provincial Chancellor did so by way of a letter dated 7th November, 2024 (annexture JOS-1), which explicitly informed the Petitioner, through his Counsel, that his nomination could not proceed, as he did not meet the strict requirements of the ACK Constitution regarding the eligibility and nomination of candidates for bishopric.
27. The 2nd Respondent further states that his office forwarded the names of the 6th Respondent and the Interested Parties as duly shortlisted candidates for the subject vacancy. He avers that the process leading to the nomination and election of the 2nd Bishop of the DME adhered strictly to the provisions of the Constitution of the ACK, including Articles XI(7) and XI(8), and Articles VIII(8) and VIII(9) of the Constitution of the DME.
28. The 2nd Respondent confirms that he was aware, at all material times, that the 6th Respondent held the positions of Clerical Secretary of the Synod and Assistant Administrative Secretary of the DME and that such appointments were made pursuant to Article XV of the Constitution of the ACK and Article X(4) of the Constitution of the DME. He avers that there is no obligation under either Constitution requiring the 6th Respondent to disclose his candidacy to the Petitioner. Further, the 6th Respondent was not expected to know the identities of other candidates intending to run for the vacant office.
29. The 2nd Respondent avers that he was informed by the 3rd Respondent, the Diocesan Chancellor of the DME, who was responsible for receiving and opening all nomination papers, that the 6th Respondent did not participate in the exercise of opening the nomination documents and that consequently, no prejudice was caused to the Petitioner in this regard.
30. The 2nd Respondent asserts that the Petitioner’s right to legitimate expectation must be grounded upon the Constitutions of the ACK and DME as well as the official declaration of the vacancy. The declaration of vacancy required the Petitioner to submit specific documents, including proof of age (e.g., birth certificate), details of ordination or canonical status to establish standing within the Anglican Communion, a curriculum vitae evidencing educational and pastoral experience and proof of marital status. The 2nd Respondent avers that the Petitioner failed to provide these essential documents.
31. The 2nd Respondent takes the position that without the requisite documentation, it was not possible to determine, on a prima facie basis, that the Petitioner was qualified to vie for the vacant bishopric. The application form explicitly requested such documents, which the Petitioner either failed or refused to submit.
32. With respect to the Petitioner’s claim that the 5th Respondent refused to provide reasons for declining to interview him, the 2nd Respondent states that the Petitioner admitted in his Petition that he was informed by the Search Committee that his nomination documents were deficient.
33. The 2nd Respondent avers that, in accordance with Article XI of the ACK Constitution, the Search Committee is mandated to ensure that all candidates meet the eligibility requirements prior to interviews. Upon review, the Petitioner’s documents were found to be non-compliant, which justified the decision not to interview him. The 2nd Respondent makes reference to the Minutes of the Opening and Vetting of Nomination Papers for Candidates to the 2nd Bishop of the DME, dated 15th October,2024.
34. The 2nd Respondent further states that any contention that the 2nd and 4th Respondents failed to address the Petitioner’s complaint regarding the Search Committee’s refusal to interview him would constitute interference with the constitutional mandate of the Search Committee as the Committee’s decisions are final and cannot be countermanded by either the 2nd or 4th Respondents, who have no constitutional authority to review or overturn the Committee’s determination regarding candidate eligibility.
35. Regarding the Petitioner’s claims of undignified or disrespectful treatment by the 5th Respondent, the 2nd Respondent states that such allegations are baseless and unfounded. He avers that the decision of the Search Committee not to interview the Petitioner was communicated professionally and in accordance with established procedures.
36. The 2nd Respondent states that the Petitioner bears the burden of proving that the 4th Respondent acted in a manner that allowed the 6th Respondent to interfere with the Petitioner’s application documents.
37. The 2nd Respondent further avers that the 6th Respondent’s candidacy did not conflict with his official roles as Clerical Secretary of the Synod and Assistant Administrative Secretary of the Diocese, and neither the Constitution of the ACK nor the Constitution of the DME requires a serving officer to resign or disclose an interest when running for office. He states that in circumstances where the Clerical Secretary is unavailable, the Constitution of the ACK provides that the Diocesan Administrative Secretary shall assume the mandate of the office. In this instance, Rev. Jeconia Owino Onyango, the Diocesan Administrative Secretary, presided over the relevant proceedings in place of the 6th Respondent, who was a candidate for vetting as per the minutes of the Opening and Vetting of Nomination Papers, dated 15th October 2024.
38. The 2nd Respondent states that the Petitioner bears the burden of proving that the 4th Respondent’s timing in filling the vacancy violated the Constitutions of the ACK or DME or was intended to favor a particular candidate. The 2nd Respondent further avers that under the Constitution of the ACK, the process and timing of a bishopric vacancy is determined by the outgoing Bishop’s retirement date, which is fixed by the date of birth and that Bishops retire at age sixty-five, and each swears an oath at consecration affirming their retirement date. Neither the ACK nor the DME has authority to alter the retirement date of a Bishop to benefit any candidate.
D. The 5th Respondent’s replying affidavit.
39. The 5th Respondent opposes the Petition and filed a replying affidavit sworn on 22nd January 2025, in which he avers that he is the Bishop of the ACK Diocese of Mbeere. He states that, pursuant to the Constitution of the ACK, to qualify as a candidate for the office of Bishop, a person must be at least thirty-five (35) years of age, not exceeding sixty (60) years, and must be nominated by members of either the Diocesan Synod of the vacant See or the Provincial Standing Committee of Synod of the ACK.
40. The 5th Respondent further states that a candidate may be validly nominated by the Diocesan Synod through either two priests and three laypersons, or three priests and two laypersons, while nominations by the Provincial Standing Committee require one bishop, one priest and one layperson. He avers that these provisions ensure that nominators are bona fide members of the Church whose identities are verifiable.
41. The 5th Respondent avers that when the Petitioner appeared before the Search Committee, which he chaired, the Committee carefully examined his nomination documents. The Committee determined that the Petitioner did not qualify to be interviewed because his nominators did not meet constitutional requirements: they comprised one bishop, one priest and three laypersons instead of the required composition of one bishop, two priests and two laypersons, as per the Petitioner’s nomination paper, annexed to his affidavit as part of GOO5.
42. The 5th Respondent avers that his conduct as Chair of the Search Committee, and that of the Committee members, was in strict compliance with the procedural and constitutional guidelines of the ACK Constitution. Members of the Committee, including another bishop and senior Church officials, concurred with the findings, as indicated in the minutes of the meeting (annexture MM-1).
43. The 5th Respondent further states that the process leading to the nomination and election of the 2nd Bishop of the DME adhered fully to the provisions of the Constitution of the ACK, including Articles XI(7) and XI(8) and Articles VIII(8) and VIII(9) of the Constitution of the DME.
44. The 5th Respondent avers that the Petitioner’s claim of legitimate expectation must be grounded in the Constitutions of the ACK and DME and the declaration of vacancy, which required the submission of specific documents, including proof of age, ordination or canonical status, a curriculum vitae detailing educational and pastoral experience and proof of marital status. As per the 5th Respondent, the Petitioner failed to submit these documents.
45. The 5th Respondent states that, without the requisite documentation, the Committee could not determine, on a prima facie basis, that the Petitioner was qualified to contend for the vacant position. He denies any claim that he refused to provide reasons for declining to interview the Petitioner, noting that the Petitioner himself admitted in the Petition that he was informed by the Search Committee that his documents were deficient.
46. The 5th Respondent strongly denies the allegations that the Petitioner was treated in an undignified or disrespectful manner. He avers that the Petitioner appeared before the Committee on two occasions: first at the commencement of the vetting exercise, and later after the Committee had concluded interviews with all candidates. He states that on both occasions, the Committee communicated professionally and in accordance with established procedures that the Petitioner would not be interviewed.
E. The 3rd, 4th and 7th Respondents’ notice of preliminary objection.
47. In opposition to the petition, the 3rd, 4th and 7th Respondents filed a two-pronged notice of preliminary objection dated 29th December, 2024, proffering the following grounds:
1. The Petitioner in the suit has wrongly joined the 3rd Respondent, the 4th Respondent and the 7th Respondent as parties to the suit; the petition is misdirected and ought to be presented as against the Registered Trustees of the Anglican Church, the Registered Trustees of the Diocese of Maseno East and the Registered Trustees of the Diocese of Kajiado, which are registered as societies under the Societies Act Cap 108 Laws of Kenya and thus can only be sued through their respective Registered Trustees.
2. The Petitioner is yet to exhaust all the available local remedies as per the Church’s Constitution thus the suit is premature, wrongly instituted and fatally defective.
F. The 6th Respondent’s grounds of opposition and replying affidavit.
48. In opposition to the Petition, the 6th Respondent filed a statement of grounds of opposition and a replying affidavit.
49. The specific reasons and justifications upon which his grounds of opposition is based, is as follows:
1. THAT this court lacks the jurisdiction to hear and determine the said application.
2. THAT the application herein is misconceived, bad in law and an abuse of the process of this Honorable court.
3. THAT the application is frivolous, vexatious and trivial in nature and should be dismissed with costs.
4. THAT the application herein does not meet the mandatory requirements for granting of the orders sought.
5. THAT the application is incurably and fatally defective hence should be dismissed with costs.
6. THAT the orders sought herein are vague.
50. Although the above grounds refer to an application, the same at the top refer to opposing the amended petition dated 17th December, 2024 and I will deem the reference to an application to be a curable clerical error.
51. In his replying affidavit, the 6th Respondent states that the Court lacks jurisdiction to hear and determine the petition because the Petitioner, being an ordained priest of the Anglican Church of Kenya who subscribed to the oath of canonical obedience, has failed to exhaust the internal dispute resolution mechanisms provided for under the Anglican Church of Kenya Constitution, rendering the petition premature and liable to dismissal with costs.
52. He avers that his election as the second Bishop of the Diocese of Maseno East was conducted in strict compliance with the Constitution of Kenya and the Constitution of the Anglican Church of Kenya and that this process was consistent with the established practice in episcopal elections within the Anglican Church.
53. The 6th Respondent deposes that he served as the Clerical Secretary of the Diocese of Maseno East until 6th November 2024, when he resigned from the position upon approval of his candidature to avoid any actual or perceived conflict of interest in the bishopric election.
54. He states in his affidavit that upon expressing interest in the bishopric, he ceased to perform the functions of Clerical Secretary and did not participate in the opening, vetting or processing of nomination papers, his duties having been take
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1. The Petitioner herein Rev. Gordon Ouma Opiyo commenced the present proceedings vide the amended petition dated 17th December, 2024 in which he seeks the following reliefs;
a. A declaration that the actions of the 2nd and 4th Respondents in failing to organize and call for elections to fill the vacant position of the Episcopal See of the Diocese of Maseno East were in violation of the constitutions of the Church and the Diocese as well as the law and by extension the freedom of association in Article 36 of the Constitution of Kenya, 2010.
b. A declaration that the actions of the 5th Respondent of refusing to interview the Petitioner following his nomination to run for the vacant position of the Episcopal See of the Diocese of Maseno East amounted to undignified and disrespectful treatment of the Petitioner in violation his inherent right under Article 28 of the Constitution and a violation of his right to fair administrative action that Article 47 of the Constitution guarantees.
c. A declaration that the actions of the 5th Respondent of refusing to interview the Petitioner following his nomination to run for the vacant position of the Episcopal See of the Diocese of Maseno East along with the other nominees violated the Petitioner's freedom from discrimination enshrined in Articles 10 and 27(5) of the Constitution.
d. A declaration that the actions of the 5th Respondent of ignoring the Petitioner's advocate's letter seeking information regarding the events of the 2nd November, 2024 and the failure to give reasons for the decision were a violation of the Petitioner's right of access to information guaranteed under Article 35(1)(b), amounted to disrespectful and undignified treatment of the Petitioner in violation his inherent right under Article 28 of the Constitution and constituted a violation of the Petitioner's right to fair administrative action that Article 47 of the Constitution guarantees.
e. A declaration that the decision by the 4th Respondent to surrender the duty to receive nomination papers of candidates for the vacant See of the Diocese of Maseno East to the office of the 6th Respondent violated the Petitioner's right to fair administrative action that statute law and Article 47 of the Constitution guarantee.
f. A declaration that the decision to allow the 6th Respondent to submit his candidature and to run for the position of the vacant See of the Diocese of Maseno East while still serving in the positions that he holds in the 3rd Respondent is a violation of the Petitioner's constitutional rights in Articles 36 and 47 of the Constitution.
g. A declaration that the election of REV. BENARD OTIENO OWUOR, the 6TH RESPONDENT on the 30th November, 2024 as the Second Bishop of the Diocese of Maseno East of the Anglican Church of Kenya was so conducted in in violation of the Petitioner's constitutional rights and of the law and was therefore null and void and of no consequence.
h. An order of certiorari removing into the High Court the proceedings of the 2nd November, 2024 of the Search Committee chaired by the 5th Respondent for the position of the vacant See of the Diocese of Maseno East and on such removal, the proceedings and the decision made thereat be quashed.
i. An order of certiorari removing into the High Court the contents of the letter dated 4th November, 2024 by the 7th Respondent and in such removal the same be and the decision contained therein be quashed.
j. An order of mandamus or a mandatory injunction directing the 5th Respondent to furnish the Petitioner with all the information that the Petitioner requested for vide his advocate's letter dated 7th November, 2024
k. An order of prohibition barring the Respondents or any of them from proceeding with the election of the 2nd Bishop of the See of the Diocese of Maseno East of the Anglican Church of Kenya on the 30th November, 2024 or any other date in violation of the Constitutions of the Anglican Church of Kenya and of the Diocese of Maseno East and in violation of the law and the Petitioner's rights.
l. A permanent injunction restraining the Respondents from proceeding with the election of the 2nd Bishop of the See of the Diocese of Maseno East of the Anglican Church of Kenya on the 30th November, 2024 or any other date in violation of the Constitutions of the Anglican Church of Kenya and of the Diocese of Maseno East and in violation of the law and the Petitioner's rights.
m. A permanent injunction restraining the Respondents or any of them, whether by themselves, their agents, servants or anyone claiming through them or acting at their instance, from proceeding with the consecration and enthronement of REV. BENARD OTIENO OWUOR, the 6TH RESPONDENT as the Second Bishop of the Diocese of Maseno East of the Anglican Church of Kenya.
n. A permanent injunction restraining the REV. BENARD OTIENO OWUOR, the 6TH RESPONDENT from taking over the office of the Second Bishop of the Diocese of Maseno East of the Anglican Church of Kenya or discharging any of the functions of that office.
o. General damages for the malicious and mala fide contravention of Petitioner's constitutional and legal rights.
p. Costs of this petition to be paid by the Respondents.
B. The Petitioner’s supporting affidavit.
2. In his affidavit in support of the Petition sworn on 27th November, 2024, the Petitioner states that at the material time, he was serving as a priest of the Anglican Church of Kenya (ACK) Diocese of Kajiado. The Petitioner annexed to his affidavit as “GOO1” copies of his Licences to Officiate and Certificate of Ordination.
3. The Petitioner avers that with effect from 15th July, 2024, the Episcopal See of the Diocese of Maseno East (“DME”), one of the dioceses of the ACK, fell vacant following the retirement of the immediate former Bishop, the Rt. Rev. Joshua Owiti Ouma, upon attaining the mandatory retirement age of sixty-five years as stipulated under the Constitution of the ACK and that of the DME. The Petitioner annexed copies of the said constitutions to his affidavit, marked GOO2 and GOO3 respectively.
4. The Petitioner further deposes in his affidavit that both constitutions expressly require that, upon the office of Bishop becoming vacant by reason of retirement, the process of electing a successor must commence no later than three months prior to the effective date of the outgoing Bishop’s retirement and be finalized no later than one month before the actual date of retirement.
5. The Petitioner further avers that the 3rd Respondent, in his capacity as the Diocesan Chancellor, without any reasonable justification, contravened the aforesaid provisions of the two constitutions by issuing a letter dated 9th September, 2024 purporting to notify members of the Diocesan Synod and the members of the Provincial Standing Committee of Synod of the Church of the existence of the vacancy and outlining the procedure for the nomination of persons seeking to fill the same. The said letter further directed that all applications and nomination papers be submitted to his office on or before 8th October, 2024. The letter is annexed to the affidavit as GOO4.
6. The Petitioner avers that he duly secured nomination for the vacant bishopric position in accordance with the procedures set out in the two constitutions and prepared his nomination papers – annexed to his affidavit as GOO5. He further states that on 3rd October, 2024, while en route to submit his nomination papers and the accompanying documents pursuant to the 3rd Respondent’s letter dated 9th September, 2024, he was informed by the 3rd Respondent via telephone that his office, described in the said letter as Elgon Court, Suite D3, Nairobi, would not receive the Petitioner’s documents. The Petitioner was instead advised to submit the documents to the Diocesan Head Office in Ahero, Kisumu, which advice necessitated his travel to Kisumu, where he lodged the documents at the office of the Diocesan Administrative Secretary on 4th October, 2024.
7. The Petitioner further deposes in his affidavit that, pursuant to the two constitutions, the 6th Respondent, in his capacity as the Clerical Secretary of the Synod, was directly involved, together with the Lay Secretaries of the Synod and the 3rd Respondent, in verifying the authenticity of the nominations and confirming that the prospective candidates had been duly nominated. The Petitioner further states that the 2nd Respondent, by a letter dated 8th October, 2024 (annexture GOO6), constituted a Search Committee chaired by the 5th Respondent in accordance with Article XI(8) of the Constitution of the ACK and Article VIII(9) of the Constitution of the DME.
8. The Petitioner avers that thereafter, the 2nd Respondent, by way of an email dated 29th October, 2024 (annexture GOO7), invited him to appear before the Search Committee on 2nd November, 2024 at 10:00 a.m. at St. Peter’s Cathedral, Ahero, in the company of his spouse and with all his original certificates. He further states that when he and his spouse presented themselves before the Search Committee on the appointed date, he was turned away by the 5th Respondent on the ground that the documents he had submitted contained unresolved issues and that he would consequently not be interviewed.
9. The Petitioner avers that the particulars and/or specifics of the alleged unresolved issues were not disclosed to him, notwithstanding his requests for formal communication in that regard.
10. The Petitioner further avers in his affidavit that he instructed his Counsel, who on 7th November, 2024 sent a letter (annexture GOO8) demanding that the Petitioner be provided with certified copies of the minutes of the Search Committee meeting held on 2nd November, 2024, details of the members of the Search Committee, particulars of the nominees for the vacant position and a formal communication to the Archbishop and Diocesan Chancellor explaining the reasons for the removal of his name from the list of nominees. The Petitioner avers that this request/demand was not met.
11. The Petitioner avers that he subsequently became aware that the 6th Respondent was also contesting the vacant position, notwithstanding that he held the office of Clerical Secretary of the Synod and that of Assistant Diocesan Administrative Secretary, positions to which all candidates submitted their nomination papers under the instructions of the 3rd Respondent, who was, by virtue of his office, responsible for verifying the nomination documents.
12. The Petitioner further states that, by virtue of holding the office of Assistant Diocesan Administrative Secretary, the 6th Respondent was required to be present at the bishop’s election in the absence of the substantive Diocesan Administrative Secretary. The Petitioner deposes that the 6th Respondent failed to disclose, at the material time, that he was himself an aspirant for the vacant position of the Episcopal See of the 4th Respondent.
13. In his further deposition, the Petitioner avers that the 3rd Respondent deliberately created a state of affairs that afforded the 6th Respondent an unfair advantage over the other candidates and placed him in a position of significant conflict of interest, whereby the 6th Respondent had early access to the Petitioner’s documents while simultaneously occupying a decision-making role in respect of an election in which he himself was a candidate.
14. The Petitioner further avers that, for the purposes of his candidature, he requested a recommendation letter from the 7th Respondent, having served in the Diocese for several years. However, upon receiving the letter from the 7th Respondent’s office (annexture GOO9), he was surprised to find that, in addition to providing a recommendation, the 7th Respondent (the Diocese of Kajiado, ‘DOK’) had discharged and released him entirely from the parish where he was a priest that was under the 7th Respondent, and directed him to hand over the parish. The stated reason for this action was that the Petitioner had sought advancement within the Church at the 4th Respondent by contesting the election for the vacant position at DME. The Petitioner avers that the act of discharging and releasing him without notice or an opportunity to be heard was intended to obstruct his attempt to contest the election, as the letter was issued around the same time that the Search Committee declined to interview him.
15. The Petitioner further deposes in his affidavit that, by contrast, in the year 2016, he was nominated to vie for the position of the inaugural Bishop of the DME and ultimately placed second. He states that prior to that election, the 7th Respondent readily issued him with a letter of recommendation (annexture GOO10) without formally discharging or releasing him from the DOK.
16. In his further deposition, the Petitioner maintains that, notwithstanding the alleged violations, the 5th Respondent nonetheless proceeded to submit to the 2nd Respondent the names three candidates being the 6th Respondent, The Venerable Hannington Oluoch Ondiek and The Venerable Bernard Ogolla Okullo as the duly shortlisted candidates for the election, thereby excluding the Petitioner’s name as a qualified candidate without providing him with any valid justification.
17. The Petitioner further avers in his affidavit that, in further compounding the violations alleged above, the 2nd Respondent, together with the 4th Respondent, proceeded to appoint an Electoral College and set 30th November, 2024 as the date for the election. The Electoral College included the Bishop of the DOK, Rt. Rev. Gaddiel K. Lenini, who had relieved the Petitioner of his duties at the DOK, as a member, pursuant to the 3rd Respondent’s letter dated 8th November, 2024 and a decree directing the said election, signed by the 2nd Respondent – collectively annexed as GOO11.
18. Following the developments in which the election slated for 30th November, 2024 was conducted and the 6th Respondent declared the winner, the Petitioner sought and was granted temporary conservatory orders on 2nd January, 2025. These orders restrained the Respondents, or any of them, whether acting personally, through their agents or servants, or by anyone claiming under them, from proceeding with the consecration and enthronement of the 6th Respondent as the Second Bishop of the DME of the ACK. The orders further restrained the 6th Respondent from assuming the office of Second Bishop of the DME of the ACK or performing any functions of that office. The conservatory orders have since remained in force.
19. The Petitioner deposes that the election of the 6th Respondent was carried out in a manner that violated the Petitioner’s constitutional rights, including his right to fair treatment, equal opportunity and due process as guaranteed under the Constitution.
20. The Petitioner further avers that the election process was tainted by procedural irregularities, conflicts of interest and non-compliance with the provisions of the Constitutions of the ACK and the DME, all of which undermined the integrity and legality of the election. By reason of these breaches, the Petitioner contends that the election of the 6th Respondent is null and void and ought not to be recognized, validated or allowed to stand under the law.
C. The 1st and 2nd Respondents’ replying affidavit.
21. The 1st and 2nd Respondents oppose the Petition and in that regard, filed a replying affidavit sworn on 22nd January, 2025 by Jackson Ole Sapit, the holder of the office of the 2nd Respondent. For purposes of clarity in this affidavit, I shall refer to the deponent as the 2nd Respondent.
22. The 2nd Respondent’s affidavit, as filed in the Case Tracking System, seems to be incomplete, as the second page, which was to contain paragraphs 4 to 9, is missing. Notwithstanding this omission, I shall address the contents that are available and extract the relevant information therein.
23. In his affidavit, the 2nd Respondent avers that the election of a Bishop of a particular Episcopal See or Diocese is governed under Article XI of the Constitution of the ACK, which prescribes the requirements and procedures for such elections.
24. The 2nd Respondent further states that, according to the Constitution of the ACK, the Search Committee constituted for the purpose of a bishopric election comprises twelve (12) members: six (6) selected from the Province of the ACK and six (6) selected from the Diocese whose bishopric is vacant.
25. The 2nd Respondent avers that the actions undertaken by the 5th Respondent, in his capacity as Chair of the Search Committee, in interviewing the validly nominated candidates were carried out in strict compliance with the procedural and constitutional guidelines prescribed by the Constitution of the ACK.
26. The 2nd Respondent acknowledges that the Petitioner’s Counsel wrote to him by way of a demand letter, which he received. Upon receipt, he instructed the Provincial Chancellor of the 1st Respondent to respond. The Provincial Chancellor did so by way of a letter dated 7th November, 2024 (annexture JOS-1), which explicitly informed the Petitioner, through his Counsel, that his nomination could not proceed, as he did not meet the strict requirements of the ACK Constitution regarding the eligibility and nomination of candidates for bishopric.
27. The 2nd Respondent further states that his office forwarded the names of the 6th Respondent and the Interested Parties as duly shortlisted candidates for the subject vacancy. He avers that the process leading to the nomination and election of the 2nd Bishop of the DME adhered strictly to the provisions of the Constitution of the ACK, including Articles XI(7) and XI(8), and Articles VIII(8) and VIII(9) of the Constitution of the DME.
28. The 2nd Respondent confirms that he was aware, at all material times, that the 6th Respondent held the positions of Clerical Secretary of the Synod and Assistant Administrative Secretary of the DME and that such appointments were made pursuant to Article XV of the Constitution of the ACK and Article X(4) of the Constitution of the DME. He avers that there is no obligation under either Constitution requiring the 6th Respondent to disclose his candidacy to the Petitioner. Further, the 6th Respondent was not expected to know the identities of other candidates intending to run for the vacant office.
29. The 2nd Respondent avers that he was informed by the 3rd Respondent, the Diocesan Chancellor of the DME, who was responsible for receiving and opening all nomination papers, that the 6th Respondent did not participate in the exercise of opening the nomination documents and that consequently, no prejudice was caused to the Petitioner in this regard.
30. The 2nd Respondent asserts that the Petitioner’s right to legitimate expectation must be grounded upon the Constitutions of the ACK and DME as well as the official declaration of the vacancy. The declaration of vacancy required the Petitioner to submit specific documents, including proof of age (e.g., birth certificate), details of ordination or canonical status to establish standing within the Anglican Communion, a curriculum vitae evidencing educational and pastoral experience and proof of marital status. The 2nd Respondent avers that the Petitioner failed to provide these essential documents.
31. The 2nd Respondent takes the position that without the requisite documentation, it was not possible to determine, on a prima facie basis, that the Petitioner was qualified to vie for the vacant bishopric. The application form explicitly requested such documents, which the Petitioner either failed or refused to submit.
32. With respect to the Petitioner’s claim that the 5th Respondent refused to provide reasons for declining to interview him, the 2nd Respondent states that the Petitioner admitted in his Petition that he was informed by the Search Committee that his nomination documents were deficient.
33. The 2nd Respondent avers that, in accordance with Article XI of the ACK Constitution, the Search Committee is mandated to ensure that all candidates meet the eligibility requirements prior to interviews. Upon review, the Petitioner’s documents were found to be non-compliant, which justified the decision not to interview him. The 2nd Respondent makes reference to the Minutes of the Opening and Vetting of Nomination Papers for Candidates to the 2nd Bishop of the DME, dated 15th October,2024.
34. The 2nd Respondent further states that any contention that the 2nd and 4th Respondents failed to address the Petitioner’s complaint regarding the Search Committee’s refusal to interview him would constitute interference with the constitutional mandate of the Search Committee as the Committee’s decisions are final and cannot be countermanded by either the 2nd or 4th Respondents, who have no constitutional authority to review or overturn the Committee’s determination regarding candidate eligibility.
35. Regarding the Petitioner’s claims of undignified or disrespectful treatment by the 5th Respondent, the 2nd Respondent states that such allegations are baseless and unfounded. He avers that the decision of the Search Committee not to interview the Petitioner was communicated professionally and in accordance with established procedures.
36. The 2nd Respondent states that the Petitioner bears the burden of proving that the 4th Respondent acted in a manner that allowed the 6th Respondent to interfere with the Petitioner’s application documents.
37. The 2nd Respondent further avers that the 6th Respondent’s candidacy did not conflict with his official roles as Clerical Secretary of the Synod and Assistant Administrative Secretary of the Diocese, and neither the Constitution of the ACK nor the Constitution of the DME requires a serving officer to resign or disclose an interest when running for office. He states that in circumstances where the Clerical Secretary is unavailable, the Constitution of the ACK provides that the Diocesan Administrative Secretary shall assume the mandate of the office. In this instance, Rev. Jeconia Owino Onyango, the Diocesan Administrative Secretary, presided over the relevant proceedings in place of the 6th Respondent, who was a candidate for vetting as per the minutes of the Opening and Vetting of Nomination Papers, dated 15th October 2024.
38. The 2nd Respondent states that the Petitioner bears the burden of proving that the 4th Respondent’s timing in filling the vacancy violated the Constitutions of the ACK or DME or was intended to favor a particular candidate. The 2nd Respondent further avers that under the Constitution of the ACK, the process and timing of a bishopric vacancy is determined by the outgoing Bishop’s retirement date, which is fixed by the date of birth and that Bishops retire at age sixty-five, and each swears an oath at consecration affirming their retirement date. Neither the ACK nor the DME has authority to alter the retirement date of a Bishop to benefit any candidate.
D. The 5th Respondent’s replying affidavit.
39. The 5th Respondent opposes the Petition and filed a replying affidavit sworn on 22nd January 2025, in which he avers that he is the Bishop of the ACK Diocese of Mbeere. He states that, pursuant to the Constitution of the ACK, to qualify as a candidate for the office of Bishop, a person must be at least thirty-five (35) years of age, not exceeding sixty (60) years, and must be nominated by members of either the Diocesan Synod of the vacant See or the Provincial Standing Committee of Synod of the ACK.
40. The 5th Respondent further states that a candidate may be validly nominated by the Diocesan Synod through either two priests and three laypersons, or three priests and two laypersons, while nominations by the Provincial Standing Committee require one bishop, one priest and one layperson. He avers that these provisions ensure that nominators are bona fide members of the Church whose identities are verifiable.
41. The 5th Respondent avers that when the Petitioner appeared before the Search Committee, which he chaired, the Committee carefully examined his nomination documents. The Committee determined that the Petitioner did not qualify to be interviewed because his nominators did not meet constitutional requirements: they comprised one bishop, one priest and three laypersons instead of the required composition of one bishop, two priests and two laypersons, as per the Petitioner’s nomination paper, annexed to his affidavit as part of GOO5.
42. The 5th Respondent avers that his conduct as Chair of the Search Committee, and that of the Committee members, was in strict compliance with the procedural and constitutional guidelines of the ACK Constitution. Members of the Committee, including another bishop and senior Church officials, concurred with the findings, as indicated in the minutes of the meeting (annexture MM-1).
43. The 5th Respondent further states that the process leading to the nomination and election of the 2nd Bishop of the DME adhered fully to the provisions of the Constitution of the ACK, including Articles XI(7) and XI(8) and Articles VIII(8) and VIII(9) of the Constitution of the DME.
44. The 5th Respondent avers that the Petitioner’s claim of legitimate expectation must be grounded in the Constitutions of the ACK and DME and the declaration of vacancy, which required the submission of specific documents, including proof of age, ordination or canonical status, a curriculum vitae detailing educational and pastoral experience and proof of marital status. As per the 5th Respondent, the Petitioner failed to submit these documents.
45. The 5th Respondent states that, without the requisite documentation, the Committee could not determine, on a prima facie basis, that the Petitioner was qualified to contend for the vacant position. He denies any claim that he refused to provide reasons for declining to interview the Petitioner, noting that the Petitioner himself admitted in the Petition that he was informed by the Search Committee that his documents were deficient.
46. The 5th Respondent strongly denies the allegations that the Petitioner was treated in an undignified or disrespectful manner. He avers that the Petitioner appeared before the Committee on two occasions: first at the commencement of the vetting exercise, and later after the Committee had concluded interviews with all candidates. He states that on both occasions, the Committee communicated professionally and in accordance with established procedures that the Petitioner would not be interviewed.
E. The 3rd, 4th and 7th Respondents’ notice of preliminary objection.
47. In opposition to the petition, the 3rd, 4th and 7th Respondents filed a two-pronged notice of preliminary objection dated 29th December, 2024, proffering the following grounds:
1. The Petitioner in the suit has wrongly joined the 3rd Respondent, the 4th Respondent and the 7th Respondent as parties to the suit; the petition is misdirected and ought to be presented as against the Registered Trustees of the Anglican Church, the Registered Trustees of the Diocese of Maseno East and the Registered Trustees of the Diocese of Kajiado, which are registered as societies under the Societies Act Cap 108 Laws of Kenya and thus can only be sued through their respective Registered Trustees.
2. The Petitioner is yet to exhaust all the available local remedies as per the Church’s Constitution thus the suit is premature, wrongly instituted and fatally defective.
F. The 6th Respondent’s grounds of opposition and replying affidavit.
48. In opposition to the Petition, the 6th Respondent filed a statement of grounds of opposition and a replying affidavit.
49. The specific reasons and justifications upon which his grounds of opposition is based, is as follows:
1. THAT this court lacks the jurisdiction to hear and determine the said application.
2. THAT the application herein is misconceived, bad in law and an abuse of the process of this Honorable court.
3. THAT the application is frivolous, vexatious and trivial in nature and should be dismissed with costs.
4. THAT the application herein does not meet the mandatory requirements for granting of the orders sought.
5. THAT the application is incurably and fatally defective hence should be dismissed with costs.
6. THAT the orders sought herein are vague.
50. Although the above grounds refer to an application, the same at the top refer to opposing the amended petition dated 17th December, 2024 and I will deem the reference to an application to be a curable clerical error.
51. In his replying affidavit, the 6th Respondent states that the Court lacks jurisdiction to hear and determine the petition because the Petitioner, being an ordained priest of the Anglican Church of Kenya who subscribed to the oath of canonical obedience, has failed to exhaust the internal dispute resolution mechanisms provided for under the Anglican Church of Kenya Constitution, rendering the petition premature and liable to dismissal with costs.
52. He avers that his election as the second Bishop of the Diocese of Maseno East was conducted in strict compliance with the Constitution of Kenya and the Constitution of the Anglican Church of Kenya and that this process was consistent with the established practice in episcopal elections within the Anglican Church.
53. The 6th Respondent deposes that he served as the Clerical Secretary of the Diocese of Maseno East until 6th November 2024, when he resigned from the position upon approval of his candidature to avoid any actual or perceived conflict of interest in the bishopric election.
54. He states in his affidavit that upon expressing interest in the bishopric, he ceased to perform the functions of Clerical Secretary and did not participate in the opening, vetting or processing of nomination papers, his duties having been take
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