REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIRОВІ
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. E224 OF 2026
IN THE MATTER OF: ARTICLES 22, 23, 27, 32, 36, 47 AND 165 OF
THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: SECTION 18 AND OTHER RELEVANT PROVISIONS OF THE SOCIETIES ACT (CAP 108 )
BETWEEN
RICHARD GITAA GITANGWA…………………………….. PETITIONER
VERSUS
THE REGISTRAR OF SOCIETIES…………………...1ST RESPONDENT
THE REGISTERED TRUSTEES OF THE
EVANGELICAL LUTHERAN CHURCH IN
KENYA (ELCК)…………………………………………2ND RESPONDENT
THE Ag. GENERAL SECRETARY, ELCK………….. 3RD RESPONDENT
THE RETURNING OFFICER, ELCK……………….. 4TH RESPONDENT
THE ARCHBISHOP, ELCK…………………………... 5TH RESPONDENT
JUDGMENT
1. The Petition dated 8 th April, 2026 seeks the following reliefs:
1. A declaration that the purported 2008 Constitution of the Evangelical Lutheran Church in Kenya is illegal, null and void. 2. A declaration that the use of the said Constitution violates Articles 27, 32, 36 and 47 of the Constitution.
2. A declaration that all actions undertaken pursuant to the impugned Constitution are unlawful and of no legal effect.
3. An order of certiorari quashing all decisions made under the impugned Constitution.
4. An order of prohibition restraining the Respondents from further reliance on the said Constitution.
5. An order of mandamus compelling the 1st Respondent to enforce compliance with the Societies Act and confirm the lawful Constitution and officials.
6. An order directing that a lawful and inclusive General Assembly be convened under a duly registered Constitution.
7. An order that all transactions and decisions undertaken by unrecognized officials be subjected to scrutiny and appropriate legal action.
8. An order imposing sanctions against the officials responsible for the unlawful governance, including disqualification from office, personal accountability for unauthorized acts, and directions for statutory enforcement measures by the Registrar of Societies.
9. An order imposing sanctions against the officials responsible for the unlawful governance, including disqualification from office, personal accountability for unauthorized acts, and directions for statutory enforcement measures by the Registrar of Societies.
10. An order directing investigations into the management of Church resources and any irregular or unauthorized dealings.
2. The Petition challenges the alleged unlawful governance of the Evangelical Lutheran Church in Kenya (ELCK) under what he characterizes as a purported Constitution developed around the year 2008 which has never been registered under the Societies Act (Cap 108). The Petition further challenges the alleged failure by the 1st Respondent to discharge its statutory mandate, which, according to the Petitioner, has facilitates continued illegality.
3. Opposing the Petition, the 2 nd to 5 th Respondents filed joint Grounds of Opposition and prayed for dismissal of the petition with costs.
4. The specific grounds advanced are: the petitioner is a busy body with no locus standi to institute and/or maintain the petition herein; the petition is an afterthought and is guilty of laches; there is no provision under the Societies Act (CAP 108 of the Laws of Kenya) that backs up the petitioner’s contentions in the petition herein;the petition is fishing, speculative, vague, imprecise, non-specific, uncertain, incomprehensible and too general and, therefore, not capable of being allowed;the allegations in the petition have not been proved and the petitioner has failed to demonstrate a case worthy of the prayers that he has sought. Consequently, the prayers that the petitioner has sought are incapable of being granted;the parties listed herein as the 3rd, 4th and 5th respondents are not capable of being sued and they ought to be struck out of the petition;the petitioner is not forthright and is guilty of material non-discloser;the petition is mischievous, in bad faith and an abuse of court process;te 2nd -5 th respondents object to the production and use in evidence herein of the exhibits “RGG-3” and “RGG-4” referred to at paragraphs 5, 6, 7 and 8 of the Supporting Affidavit to the Petition of Richard Gitaa Gitangwa sworn on 8th April 2026, as the petitioner is not lawfully competent to produce the said evidence;the church Constitution is not discriminatory, as it has established many leadership positions into which persons may seek to be elected, depending on their qualifications;it is neither unusual nor improper for an organization’s domestic constitution to prescribe qualifications for leadership within the organization;the petitioner is seeking to amend the church Constitution though the instant petition contrary to the procedure of amendment that is prescribed by the said Constitution;the petition is scandalous, and has merely wildly and alarmingly thrown-about serious and irrelevant allegations that the petitioner has failed to substantiate;the petition is internally inconsistent and procedurally inept;the petitioner has freedoms of conscience, association and worship;the petitioner has confessed and confirmed that he is a member of the Evangelical Lutheran Church in Kenya, thereby confirming that he has not been excluded from membership;the petition herein raises no constitutional and no human rights issues worthy of being considered within the specialized jurisdiction of this Honourable Court;allowing the petition herein would occasion far-reaching disruptions, chaos and disorder in the life and operations of the Evangelical Lutheran Church in Kenya, as it would trigger untold vacuums and turn back the church’s clock more than 17 years backwards, which disruptions, chaos and disorder would be disproportionate and unjustifiable in the circumstances;the petition has raised unnecessary issues, thereby unnecessarily overloading and convoluting the court process and thereby turning the petition into a vexatious and frivolous proceeding and an abuse of court process;the petitioner has not exhausted the available statutory and alternative remedies;the petition is misconceived, incompetent and bad in law; and that the petition has been overtaken by events in so far as it seeks to stop the holding of the church’s General Assembly that was scheduled for 8th -11th April 2026.
SUBMISSIONS
The Petitioner’s submissions
5. In his written submissions dated 30 th April 2026, the Petitioner reiterates the contents of the Petition and submits on the following identified issues:
a) Whether the use of an unregistered Constitution is unlawful;
b) Whether the doctrine of laches applies;
c) Whether Articles 27, 32, 36 and 47 of the Constitution have been violated;
d) Whether the Respondents are properly before Court; and
e) Whether the Petitioner is entitled to the reliefs sought including sanctions.
6. On the the legal status of the impugned constitution, the Petitioner submitted that Section 18 of the Societies Act imposes a mandatory obligation that any amendment to a society's constitution must be notified to and registered by the Registrar. He cited the case of Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank Ltd 120021 eKLR, where the Court of Appeal at Nairobi, Civil Appeal No. 83 of 2001 is said to have emphatically underscored that internal governance of a registered society must strictly comply with the Societies Act, and that any purported changes to a constitution or leadership that do not adhere to the statutory framework are null and void.
7. It was submitted that the above cited case directly supports the proposition that: aamendments to a society's constitution are not self-executing; that compliance with statutory procedure, including notification and approval by the Registrar, is mandatory; that any purported amendment undertaken outside that framework is legally ineffective. The reasoning aligns squarely with Section 18 of the Societies Act, which requires that amendments be notified to and recognized by the Registrar before they can take effect.
8. Further argument was that the above court’s position reinforces that the Registrar's role is not merely administrative but is a statutory safeguard against unlawful or irregular governance within societies.
9. Ihe Petitioner also placed reliance on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [20141 eKLR, where the Supreme Court of Kenya, in Application No. 5 of 2014, stressed that the rule of Iaw demands that all persons and authorities, including private bodies exercising public functions, must act within the confines of the law.
10. He submitted that prior compliance with statutory requirements, particularly notification and approval by the Registrar, is a condition precedent to the validity of any constitutional amendment within a registered society. He maintained that the impugned Constitution has never been registered and that the Respondents had admitted
11. According to the petitioner, the Respondents admitted that the Unregistered constitution had been in use since 2008. That admission confirms, in the petitioner’s view, is evidence of a continuous breach of statute, whose legal consequence of non-compliance with mandatory statutory provisions is nullity.
12. The petitioner argued that an unregistered Constitution is void ab initio and incapable of conferring authority, rights or obligations and that. Article 2(4) of the Constitution reinforces this position by declaring that any law inconsistent with the Constitution is void. He relied on Law Society of Kenya v Attorney General & Another [2013] eKLR, Constitutional Petition No. 4 of 2013 where the High Court is said to have held that any law inconsistent with the Constitution, as espouse din Article 2(4) of the Constitution is void to the extent of the inconsistency.
13. He also relied on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [20121 eKLR , on the pronouncement by the Supreme Court of Kenya on the supremacy of the Constitution to anchor his further argument that the impugned church constitution, being inconsistent with both the Constitution and statute, is legally untenable and void and that therefore, all actions undertaken pursuant to the impugned Constitution are unlawful.
14. On the applicability of the doctrine of laches, the petitioner submitted that the Respondents’ defence is of laches cannot be used to sanitize illegality or defeat constitutional claims. He relied on Republic v National Environmental Management Authority ex parte Sound Equipment Ltd [2011] eKLR, where the High Court in Judicial Review Miscellaneous Application No. 185 of 2009 is said to have held that “Where decision is a nullity, it matters not that there has been delay... a nullity is a nullity and cannot be validated by lapse of time. "
15. The petitioner argued that the impugned Constitution being a nullity, no amount of delay can validate it. Further, that the violations complained of are continuing in nature, that the unlawful governance structure persists, and therefore the cause of action is ongoing. He asserted that he acted diligently by engaging the 1st Respondent through formal complaints. The delay, if any, he avers, is attributable to administrative inaction and relied on the maxim that “Equity cannot be used as a shield for illegality.”
16. On alleged violation of Article 27 of the Constitution on Equality and Freedom from Discrimination, the petitioner submitted that the impugned constitution introduces academic qualifications for leadership positions which, according to the petitioner, the evidence demonstrates that: the criteria are selectively applied; individuals lacking the qualifications hold office; and those qualified individuals are excluded.
17. In his view, there is selective application which results in arbitrary and unjustifiable discrimination; and that the differentiation is not based on any lawful framework and lacks rational justification thereby violating Article 27.
18. On alleged violation of Article 32 of the Constitution on Freedom of Religion, it was submitted that Article 32 protects the right to manifest religion individually and collectively. He argued that participation in church governance is an essential component of religious practice. That by imposing an unlawful Constitution and excluding members, the Respondents have interfered with the Petitioner's right to participate in religious life.
19. the petitioner submitted that religious autonomy does not extend to acts that are unlawful or unconstitutional and that the Respondents' conduct unjustifiably limits Article 32 rights.
20. On alleged violation of Article 36 of the Constitution on Freedom of Association, the petitioner submitted that he joined a lawfully registered society governed by a recognized Constitution and accused the Respondents of substituting that framework with an unregistered and unlawful one, thereby altering the nature of the association without compliance with the law. He emphasized that his right to participate in the affairs of the association has been undermined, in violation of Article 36.
21. On allegation of violation of Article 47 of the Constitution on the right to Fair Administrative Action, the Petitioner submitted that he lodged formal complaint with the 1st Respondent, which complaint the 1st Respondent aacknowledged receipt but failed to act, with no response, which alleged inaction is classified as being unreasonable, unlawful and procedurally unfair.
22. The petitioner submitted that the inaction by the 1 st Respondent is what enabled the continued alleged illegality and amounts to a violation of Article 47.
23. On whether the Respondents are properly sued, the petitioner submitted that the 1st Respondent is sued for failure to perform its statutory duty; the 2nd Respondent is the legal entity through which the impugned actions are undertaken; the 3rd and 4th Respondents are directly responsible for administration and elections under the unlawful framework; and that the 5th Respondent exercises ultimate authority and oversight and has sanctioned or permitted the impugned conduct. The Petitioner submitted that all the Respondents are therefore properly before Court.
24. On the need for sanctions and accountability, the petitioner submitted that this Honourable Court is vested with wide remedial powers under Article 23 of the Constitution, submitting that the prolonged use of an unlawful Constitution, coupled with evidence of mismanagement and unauthorized transactions, calls for more than declaratory relief. He urged the Court to impose appropriate sanctions to deter continued violation of the law; enforce accountability; and restore lawful governance. He proposed sanctions to include: disqualification of officials who acted under the unlawful framework from holding office pending lawful elections; personal liability for unauthorized transactions entered into without lawful authority; directions for statutory sanctions by the 1st Respondent against errant officials; orders for investigation into financial mismanagement and possible recovery of misapplied funds.
25. He concluded that aabsent such measures, the declarations sought would be rendered ineffective and the rule of law undermined. The petitioner urged the Court to grant the reliefs sought in the petition as reproduced in these submissions.
THE RESPONDENTS’ SUBMISSIONS
26. In their Submissions dated 10 th May, 2026, filed by the 2nd to 5th Respondents (the Registered Trustees, Ag. General Secretary, Returning Officer, and Arch-Bishop of the Evangelical Lutheran Church in Kenya - ELCK) in opposition to the Petition, the four respondents reiterate their contentions in the grounds of opposition dated 20 th April 2026 and submit as follows:
27. On Failure to Exhaust Internal Remedies, t he Respondents argued that the Petitioner rushed to court without utilizing the internal dispute resolution mechanisms and appellate structures (up to the General Assembly) provided under Article XXIII and Article X of the Church Constitution, as well as statutory processes with the Registrar of Societies, under section 18 of the Societies Act. Their counsel cited several decisions to support this argument among them, Secretary respectively of Central Kenya Conference (CKC); Moses Nyankuru & 23 others (Interested Parties) Ex parte Humphrey Nguma Macharia & another [2019] eKLR , where Justice Mativo reiterated the Court of Appeal’s observation that the decisions of the superior courts indicate that the doctrine of exhaustion of remedies … is now of esteemed juridical lineage in Kenya; N zioki v Machakos Regional Church Council- AIC Kenya & 4 others (Constitutional Petition E001 of 2023) [2023] KEHC 25651 (KLR) (22 November 2023) (Ruling) Neutral citation: [2023] KEHC 25651 (KLR) , where M. W. Muigai J.) faulted the petitioner for having rushed the dispute to court without having exhausted the church’s internal dispute resolution mechanism, before directing the dispute to be returned to the church for purposes of exhausting the church’s internal dispute resolution mechanism; Mokua v Nyasani & 4 others (Petition 001 of 2024) [2024] KEHC 3213 (KLR) (14 March 2024) (Ruling) Neutral citation: [2024] KEHC 3213 (KLR) , where the High Court, W. A. Okwany J.) struck out the petition for the reason that it had been filed in court before the petitioner exhausted the internal dispute resolution mechanism of the society that was involved, in which case, the Kenya Football Federation (KFF), an organization with a Constitution containing provisions that prescribe an internal dispute resolution mechanism, just the same way that the Constitution of the Evangelical Lutheran Church of Kenya herein does, citing William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR; Geoffrey Muthinja & Another vs. Samuel Muguna Henry & 1756 others (2015) eKLR; Republic v JP. Maiywo & 2 others sued as the Executive Director, Treasurer and Secretary respectively of Central Kenya Conference (CKC); Moses Nyankuru & 23 others (Interested Parties) Ex parte Humphrey Nguma Macharia & another [2019] eKLR.
28. The Respondents urged this Court to apply the decisions cited above and find that because the Constitution of the Church has mechanisms for dispute resolution, which were bypassed, this Court should decline to entertain the petition herein and dismiss it.
30. On Laches and Inordinate Delay, the 2 nd to 5 th Respondents submitted that the impugned Church Constitution was adopted in 2008. They contend that waiting over 17 years to challenge it constitutes unreasonable delay (laches), thereby extinguishing the cause of action and threatening massive disruption to nearly two decades of administrative decisions, elections, and transactions.reliance was placed Ben Sirengo v Kwanza Land Disputes Tribunal Comprising of Onyango Wao & 4 Others [2009] eKLR , and Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR; Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR; and Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (27 January 2023) (Judgment) Neutral citation: [2023] KESC 3 (KLR), to support the contention that the petition had come too late in the day and was prejudicial to the Respondents.
31. On Lack of Locus Standi, it was submitted that the Petitioner has failed to show how he personally suffered injury or prejudice, rendering him a "busybody" acting on behalf of an undisclosed third party rather than advancing a legitimate public interest or personal grievance. Reliance was place don several decisions including Kenya Railways Corporation 2 others v Okoiti 3 others (Petition 1318 (E019)of2020 (Consolidated)) 2023KESC38(KLR) (16June2023) (Judgment) (1); Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR Neutral citation: [2013] KECA 445 (KLR); Okoiti v Portside Freight Terminals Limited & 12 others (Petition E011 of 2024) [2025] KESC 44 (KLR) (30 June 2025) (Judgment) ;and Ruwa & 2 others v Secretary Independent Electoral and Boundaries Commission 9 others (Civil Appeal 9 of 2013) 2016 KECA 371 (KLR) (8 July 2016) (Judgment) to urge the court to strike off the 2 nd to 5 th Respondents from the petition as they are not persons for purposes of these proceedings, capable of being sued. Counsel submitted that the petition is accordingly incompetent for Misjoinder of Unincorporated Parties , and that the 3rd, 4th, and 5th Respondents are internal office titles rather than legal persons capable of being sued, and should be struck out of the petition.
32. On Exempted vs. Registered Society Status, counsel submitted that the 2 nd Respondent Church is an "exempted society" under Section 10 of the Societies Act (Cap 108). The Respondents argued that requirements governing the mandatory registration of constitutional amendments apply only to registered societies, not exempted ones.
33. On the Validity of Leadership Qualifications, the Respondents defend the academic requirements (such as degrees in theology and financial administration) for high church offices, arguing that they are lawful, non-discriminatory, and within the church's discretion to establish for sound governance.
34. The Respondents submit that in this case, the Petition is a proxy war sponsored by an individual (Rev. Andrew Atunga Ongondo) who was disqualified from running for Diocesan Bishop due to failing the academic requirements set out in the 2008 Constitution. They maintain that the petitioner is estopped from bringing such a petition since Rev Atunga is a beneficiary of the same constitution which is being impugned and that the issues raised are not public interest or constitutional questions but for personal gain.
35. They urged the court to strike out the 2 nd , 3rd, 4th, and 5th Respondents from the petition; expunge the various paragraphs of the Petition and Supporting Affidavit containing unsubstantiated, scandalous allegations (e.g., claims of financial mismanagement and comparisons to religious indoctrination) and dismissal of the Petition in its entirety with costs.
ANALYSIS AND DETERMINATION
36. I have considered the petition, supporting affidavit, responses to the Petition and the respective Parties’ written submissions. the main issues for determination are:
i. Whether the Respondents have legal standing (locus standi) to be sued as Respondents
ii. Whether the petition offence the doctrine of Constitutional avoidance.
iii. Whether the Petition offends the doctrine of exhaustion of remedies
37. There are several other questions that the Court will answer in the course of resolving the issues identified, commencing with preliminary issues which need not go into much discussion based on the evidence available on record and the law. This question is whether the 2 nd Respondent is a registered society or whether as asserted by the Respondents, was exempted from registration.
38. On record, is evidence by way of two certificates of exemption from registration issued to the 2 nd Respondent, which evidence has not been controverted. The first certificate is No. 1653 dated 27/7/1966 while the second certificate of exemption is the one dated 21/9/2011.
39. The exemptions were granted under section 10 of the Societies Act and following successful applications pursuant to section 9 of the Societies Act.
40. Section 9 of the Act provides:
9. Society to apply for registration or exemption
Every society shall, in the prescribed manner and within twenty-eight days after the formation thereof, make application to the Registrar for registration or for exemption from registration under this Act.
41. Under section 10 on the manner of effecting registration or exemption from registration of a society:
10. Manner of effecting registration or exemption from registration
(1) Upon application being made in the prescribed manner for registration of a society, the Registrar shall, subject to this Act, register the society by entering in the register of societies, kept for the purpose, the prescribed particulars and the date of the entry.
(2)Upon application being made in the prescribed manner for exemption of a society from registration, the Registrar may, with the approval of the Cabinet Secretary, so exempt the society, and if he does not so exempt the society he shall treat the application as an application for registration and shall, subject to the provisions of this Act, register the society.
( 3)Upon registering a society or exempting it from registration , the Registrar shall issue to the society a certificate of registration or exemption from registration in the prescribed form.
42. Section 13 provides for rescission of exemption from registration and states:
13. Rescission of exemption
The Registrar may, with the approval of the Cabinet Secretary, at any time rescind the exemption of a society from registration given under section 10 of this Act, and if he does so he shall forthwith notify the society thereof:
Provided that the society, if it is not a society of one of the kinds specified in paragraphs (i), (ii) and (iii) of the proviso to section 4 (1) of this Act, may, within a period of twenty-eight days from the date of the receipt of notification of the rescission, apply for registration under this Act, and where the society does so it shall not, unless and until such application is refused, be an unlawful society, notwithstanding the said section 4 (1).
43. In the instant case, there is evidence of exemption from registration of the 2 nd respondent. There is no evidence that the exemption was rescinded in which event, a notice of rescission of exemption from registration would have been issued by the Registrar to the officials of the society who would then have 21 days to apply for registration of the society under the Act.
44. Having said that, Rule 2 of the Societis Rules, provides for what an applicant for registration or exemption from registration of a society should provide to the Registrar. The Rule states:
Every application made for registration or exemption from registration under section 9 of the Act shall —
(a)be made in duplicate in Form A in the Schedule to these Rules;
(b)be typewritten;(c)be signed by three of the officers of the society;
(d)be sent to the Registrar together with the prescribed fee;
(e)be accompanied—
(i )subject to any direction of the Cabinet Secretary, by two type-written or printed copies of the constitution or rules of the society ; and
(ii)by a notification in duplicate of the situation of the registered office and postal address in Form B in the Schedule to these Rules signed by three officers of the society.
45. From the above provisions, there is no way the Registrar can register or exempt a society from registration without being satisfied that the requirements under the Act and the Rules are met. Upon being satisfied that an application satisfies the requirements set, the Registrar then issues a certificate in Form D, in the Schedule to the Rules as stated in Rule 5 of the Societies Rules.
46. Critically, an application for registration or exemption from registration must be accompanied by a constitution of the intended society, setting out the objectives of the society as stipulated in section 19 of the Act and the Schedule to the Act. This is critical as registration or exemption may be rejected if the objectives or purposes of the society are to carry out unlawful activities or if it does not satisfy the requirements under the Acy and Schedule.
47. It is however important to note, as submitted by the respondents, that an exempted society is not subject to continuous and strict supervision by the Registrar, unlike a registered society. The exempted society must however comply with provisions of the law including the provisions of section 21 failure to which the exemption may be rescinded and it be required to apply for registration within 21 days from the date of rescission. Section 21 provides:
21. Exempted society to inform Registrar of amendment of name, etc.
(1)Every exempted society which—
(a)amends its name or objects; or
(b)becomes a branch of or affiliated to or connected with, any organization or group of a political nature established outside Kenya; or
(c)dissolves itself, shall within fourteen days from the date of effecting such amendment or other matter as aforesaid give to the Registrar notice thereof in writing signed by three of the officers of the society.
(2)Any exempted society which contravenes subsection (1) of this section shall be guilty of an offence.
48. For the foregoing reasons, I am satisfied that the 2 nd Respondent society was an exempted society from registration.
49. Onto the main issues identified for determination, first, is whether the 2 nd , 3 rd 4 th and 5 th respondents as named are capable of suing and being sued in their own names as listed.
50. The 2 nd Respondent is described as a registered religious society within the meaning of the Societies Act. The 3rd and 4th respondents are described as officials of the second respondent, responsible for its governance and administration. The 5th respondent is described as the Arch-Bishop of Evangelical Lutheran Church in Kenya, being the chief executive and spiritual leader of the church, vested with ultimate authority over its administration and governance structures, and who is sued in its official capacity for sanctioning, Constitution and the resultant decisions affecting members of the church.
51. With thos
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IN THE HIGH COURT OF KENYA AT NAIRОВІ
MILIMANI LAW COURTS
CONSTITUTIONAL & HUMAN RIGHTS DIVISION
PETITION NO. E224 OF 2026
IN THE MATTER OF: ARTICLES 22, 23, 27, 32, 36, 47 AND 165 OF
THE CONSTITUTION OF KENYA, 2010
AND
IN THE MATTER OF: SECTION 18 AND OTHER RELEVANT PROVISIONS OF THE SOCIETIES ACT (CAP 108 )
BETWEEN
RICHARD GITAA GITANGWA…………………………….. PETITIONER
VERSUS
THE REGISTRAR OF SOCIETIES…………………...1ST RESPONDENT
THE REGISTERED TRUSTEES OF THE
EVANGELICAL LUTHERAN CHURCH IN
KENYA (ELCК)…………………………………………2ND RESPONDENT
THE Ag. GENERAL SECRETARY, ELCK………….. 3RD RESPONDENT
THE RETURNING OFFICER, ELCK……………….. 4TH RESPONDENT
THE ARCHBISHOP, ELCK…………………………... 5TH RESPONDENT
JUDGMENT
1. The Petition dated 8 th April, 2026 seeks the following reliefs:
1. A declaration that the purported 2008 Constitution of the Evangelical Lutheran Church in Kenya is illegal, null and void. 2. A declaration that the use of the said Constitution violates Articles 27, 32, 36 and 47 of the Constitution.
2. A declaration that all actions undertaken pursuant to the impugned Constitution are unlawful and of no legal effect.
3. An order of certiorari quashing all decisions made under the impugned Constitution.
4. An order of prohibition restraining the Respondents from further reliance on the said Constitution.
5. An order of mandamus compelling the 1st Respondent to enforce compliance with the Societies Act and confirm the lawful Constitution and officials.
6. An order directing that a lawful and inclusive General Assembly be convened under a duly registered Constitution.
7. An order that all transactions and decisions undertaken by unrecognized officials be subjected to scrutiny and appropriate legal action.
8. An order imposing sanctions against the officials responsible for the unlawful governance, including disqualification from office, personal accountability for unauthorized acts, and directions for statutory enforcement measures by the Registrar of Societies.
9. An order imposing sanctions against the officials responsible for the unlawful governance, including disqualification from office, personal accountability for unauthorized acts, and directions for statutory enforcement measures by the Registrar of Societies.
10. An order directing investigations into the management of Church resources and any irregular or unauthorized dealings.
2. The Petition challenges the alleged unlawful governance of the Evangelical Lutheran Church in Kenya (ELCK) under what he characterizes as a purported Constitution developed around the year 2008 which has never been registered under the Societies Act (Cap 108). The Petition further challenges the alleged failure by the 1st Respondent to discharge its statutory mandate, which, according to the Petitioner, has facilitates continued illegality.
3. Opposing the Petition, the 2 nd to 5 th Respondents filed joint Grounds of Opposition and prayed for dismissal of the petition with costs.
4. The specific grounds advanced are: the petitioner is a busy body with no locus standi to institute and/or maintain the petition herein; the petition is an afterthought and is guilty of laches; there is no provision under the Societies Act (CAP 108 of the Laws of Kenya) that backs up the petitioner’s contentions in the petition herein;the petition is fishing, speculative, vague, imprecise, non-specific, uncertain, incomprehensible and too general and, therefore, not capable of being allowed;the allegations in the petition have not been proved and the petitioner has failed to demonstrate a case worthy of the prayers that he has sought. Consequently, the prayers that the petitioner has sought are incapable of being granted;the parties listed herein as the 3rd, 4th and 5th respondents are not capable of being sued and they ought to be struck out of the petition;the petitioner is not forthright and is guilty of material non-discloser;the petition is mischievous, in bad faith and an abuse of court process;te 2nd -5 th respondents object to the production and use in evidence herein of the exhibits “RGG-3” and “RGG-4” referred to at paragraphs 5, 6, 7 and 8 of the Supporting Affidavit to the Petition of Richard Gitaa Gitangwa sworn on 8th April 2026, as the petitioner is not lawfully competent to produce the said evidence;the church Constitution is not discriminatory, as it has established many leadership positions into which persons may seek to be elected, depending on their qualifications;it is neither unusual nor improper for an organization’s domestic constitution to prescribe qualifications for leadership within the organization;the petitioner is seeking to amend the church Constitution though the instant petition contrary to the procedure of amendment that is prescribed by the said Constitution;the petition is scandalous, and has merely wildly and alarmingly thrown-about serious and irrelevant allegations that the petitioner has failed to substantiate;the petition is internally inconsistent and procedurally inept;the petitioner has freedoms of conscience, association and worship;the petitioner has confessed and confirmed that he is a member of the Evangelical Lutheran Church in Kenya, thereby confirming that he has not been excluded from membership;the petition herein raises no constitutional and no human rights issues worthy of being considered within the specialized jurisdiction of this Honourable Court;allowing the petition herein would occasion far-reaching disruptions, chaos and disorder in the life and operations of the Evangelical Lutheran Church in Kenya, as it would trigger untold vacuums and turn back the church’s clock more than 17 years backwards, which disruptions, chaos and disorder would be disproportionate and unjustifiable in the circumstances;the petition has raised unnecessary issues, thereby unnecessarily overloading and convoluting the court process and thereby turning the petition into a vexatious and frivolous proceeding and an abuse of court process;the petitioner has not exhausted the available statutory and alternative remedies;the petition is misconceived, incompetent and bad in law; and that the petition has been overtaken by events in so far as it seeks to stop the holding of the church’s General Assembly that was scheduled for 8th -11th April 2026.
SUBMISSIONS
The Petitioner’s submissions
5. In his written submissions dated 30 th April 2026, the Petitioner reiterates the contents of the Petition and submits on the following identified issues:
a) Whether the use of an unregistered Constitution is unlawful;
b) Whether the doctrine of laches applies;
c) Whether Articles 27, 32, 36 and 47 of the Constitution have been violated;
d) Whether the Respondents are properly before Court; and
e) Whether the Petitioner is entitled to the reliefs sought including sanctions.
6. On the the legal status of the impugned constitution, the Petitioner submitted that Section 18 of the Societies Act imposes a mandatory obligation that any amendment to a society's constitution must be notified to and registered by the Registrar. He cited the case of Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank Ltd 120021 eKLR, where the Court of Appeal at Nairobi, Civil Appeal No. 83 of 2001 is said to have emphatically underscored that internal governance of a registered society must strictly comply with the Societies Act, and that any purported changes to a constitution or leadership that do not adhere to the statutory framework are null and void.
7. It was submitted that the above cited case directly supports the proposition that: aamendments to a society's constitution are not self-executing; that compliance with statutory procedure, including notification and approval by the Registrar, is mandatory; that any purported amendment undertaken outside that framework is legally ineffective. The reasoning aligns squarely with Section 18 of the Societies Act, which requires that amendments be notified to and recognized by the Registrar before they can take effect.
8. Further argument was that the above court’s position reinforces that the Registrar's role is not merely administrative but is a statutory safeguard against unlawful or irregular governance within societies.
9. Ihe Petitioner also placed reliance on the case of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 Others [20141 eKLR, where the Supreme Court of Kenya, in Application No. 5 of 2014, stressed that the rule of Iaw demands that all persons and authorities, including private bodies exercising public functions, must act within the confines of the law.
10. He submitted that prior compliance with statutory requirements, particularly notification and approval by the Registrar, is a condition precedent to the validity of any constitutional amendment within a registered society. He maintained that the impugned Constitution has never been registered and that the Respondents had admitted
11. According to the petitioner, the Respondents admitted that the Unregistered constitution had been in use since 2008. That admission confirms, in the petitioner’s view, is evidence of a continuous breach of statute, whose legal consequence of non-compliance with mandatory statutory provisions is nullity.
12. The petitioner argued that an unregistered Constitution is void ab initio and incapable of conferring authority, rights or obligations and that. Article 2(4) of the Constitution reinforces this position by declaring that any law inconsistent with the Constitution is void. He relied on Law Society of Kenya v Attorney General & Another [2013] eKLR, Constitutional Petition No. 4 of 2013 where the High Court is said to have held that any law inconsistent with the Constitution, as espouse din Article 2(4) of the Constitution is void to the extent of the inconsistency.
13. He also relied on Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others [20121 eKLR , on the pronouncement by the Supreme Court of Kenya on the supremacy of the Constitution to anchor his further argument that the impugned church constitution, being inconsistent with both the Constitution and statute, is legally untenable and void and that therefore, all actions undertaken pursuant to the impugned Constitution are unlawful.
14. On the applicability of the doctrine of laches, the petitioner submitted that the Respondents’ defence is of laches cannot be used to sanitize illegality or defeat constitutional claims. He relied on Republic v National Environmental Management Authority ex parte Sound Equipment Ltd [2011] eKLR, where the High Court in Judicial Review Miscellaneous Application No. 185 of 2009 is said to have held that “Where decision is a nullity, it matters not that there has been delay... a nullity is a nullity and cannot be validated by lapse of time. "
15. The petitioner argued that the impugned Constitution being a nullity, no amount of delay can validate it. Further, that the violations complained of are continuing in nature, that the unlawful governance structure persists, and therefore the cause of action is ongoing. He asserted that he acted diligently by engaging the 1st Respondent through formal complaints. The delay, if any, he avers, is attributable to administrative inaction and relied on the maxim that “Equity cannot be used as a shield for illegality.”
16. On alleged violation of Article 27 of the Constitution on Equality and Freedom from Discrimination, the petitioner submitted that the impugned constitution introduces academic qualifications for leadership positions which, according to the petitioner, the evidence demonstrates that: the criteria are selectively applied; individuals lacking the qualifications hold office; and those qualified individuals are excluded.
17. In his view, there is selective application which results in arbitrary and unjustifiable discrimination; and that the differentiation is not based on any lawful framework and lacks rational justification thereby violating Article 27.
18. On alleged violation of Article 32 of the Constitution on Freedom of Religion, it was submitted that Article 32 protects the right to manifest religion individually and collectively. He argued that participation in church governance is an essential component of religious practice. That by imposing an unlawful Constitution and excluding members, the Respondents have interfered with the Petitioner's right to participate in religious life.
19. the petitioner submitted that religious autonomy does not extend to acts that are unlawful or unconstitutional and that the Respondents' conduct unjustifiably limits Article 32 rights.
20. On alleged violation of Article 36 of the Constitution on Freedom of Association, the petitioner submitted that he joined a lawfully registered society governed by a recognized Constitution and accused the Respondents of substituting that framework with an unregistered and unlawful one, thereby altering the nature of the association without compliance with the law. He emphasized that his right to participate in the affairs of the association has been undermined, in violation of Article 36.
21. On allegation of violation of Article 47 of the Constitution on the right to Fair Administrative Action, the Petitioner submitted that he lodged formal complaint with the 1st Respondent, which complaint the 1st Respondent aacknowledged receipt but failed to act, with no response, which alleged inaction is classified as being unreasonable, unlawful and procedurally unfair.
22. The petitioner submitted that the inaction by the 1 st Respondent is what enabled the continued alleged illegality and amounts to a violation of Article 47.
23. On whether the Respondents are properly sued, the petitioner submitted that the 1st Respondent is sued for failure to perform its statutory duty; the 2nd Respondent is the legal entity through which the impugned actions are undertaken; the 3rd and 4th Respondents are directly responsible for administration and elections under the unlawful framework; and that the 5th Respondent exercises ultimate authority and oversight and has sanctioned or permitted the impugned conduct. The Petitioner submitted that all the Respondents are therefore properly before Court.
24. On the need for sanctions and accountability, the petitioner submitted that this Honourable Court is vested with wide remedial powers under Article 23 of the Constitution, submitting that the prolonged use of an unlawful Constitution, coupled with evidence of mismanagement and unauthorized transactions, calls for more than declaratory relief. He urged the Court to impose appropriate sanctions to deter continued violation of the law; enforce accountability; and restore lawful governance. He proposed sanctions to include: disqualification of officials who acted under the unlawful framework from holding office pending lawful elections; personal liability for unauthorized transactions entered into without lawful authority; directions for statutory sanctions by the 1st Respondent against errant officials; orders for investigation into financial mismanagement and possible recovery of misapplied funds.
25. He concluded that aabsent such measures, the declarations sought would be rendered ineffective and the rule of law undermined. The petitioner urged the Court to grant the reliefs sought in the petition as reproduced in these submissions.
THE RESPONDENTS’ SUBMISSIONS
26. In their Submissions dated 10 th May, 2026, filed by the 2nd to 5th Respondents (the Registered Trustees, Ag. General Secretary, Returning Officer, and Arch-Bishop of the Evangelical Lutheran Church in Kenya - ELCK) in opposition to the Petition, the four respondents reiterate their contentions in the grounds of opposition dated 20 th April 2026 and submit as follows:
27. On Failure to Exhaust Internal Remedies, t he Respondents argued that the Petitioner rushed to court without utilizing the internal dispute resolution mechanisms and appellate structures (up to the General Assembly) provided under Article XXIII and Article X of the Church Constitution, as well as statutory processes with the Registrar of Societies, under section 18 of the Societies Act. Their counsel cited several decisions to support this argument among them, Secretary respectively of Central Kenya Conference (CKC); Moses Nyankuru & 23 others (Interested Parties) Ex parte Humphrey Nguma Macharia & another [2019] eKLR , where Justice Mativo reiterated the Court of Appeal’s observation that the decisions of the superior courts indicate that the doctrine of exhaustion of remedies … is now of esteemed juridical lineage in Kenya; N zioki v Machakos Regional Church Council- AIC Kenya & 4 others (Constitutional Petition E001 of 2023) [2023] KEHC 25651 (KLR) (22 November 2023) (Ruling) Neutral citation: [2023] KEHC 25651 (KLR) , where M. W. Muigai J.) faulted the petitioner for having rushed the dispute to court without having exhausted the church’s internal dispute resolution mechanism, before directing the dispute to be returned to the church for purposes of exhausting the church’s internal dispute resolution mechanism; Mokua v Nyasani & 4 others (Petition 001 of 2024) [2024] KEHC 3213 (KLR) (14 March 2024) (Ruling) Neutral citation: [2024] KEHC 3213 (KLR) , where the High Court, W. A. Okwany J.) struck out the petition for the reason that it had been filed in court before the petitioner exhausted the internal dispute resolution mechanism of the society that was involved, in which case, the Kenya Football Federation (KFF), an organization with a Constitution containing provisions that prescribe an internal dispute resolution mechanism, just the same way that the Constitution of the Evangelical Lutheran Church of Kenya herein does, citing William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR; Geoffrey Muthinja & Another vs. Samuel Muguna Henry & 1756 others (2015) eKLR; Republic v JP. Maiywo & 2 others sued as the Executive Director, Treasurer and Secretary respectively of Central Kenya Conference (CKC); Moses Nyankuru & 23 others (Interested Parties) Ex parte Humphrey Nguma Macharia & another [2019] eKLR.
28. The Respondents urged this Court to apply the decisions cited above and find that because the Constitution of the Church has mechanisms for dispute resolution, which were bypassed, this Court should decline to entertain the petition herein and dismiss it.
30. On Laches and Inordinate Delay, the 2 nd to 5 th Respondents submitted that the impugned Church Constitution was adopted in 2008. They contend that waiting over 17 years to challenge it constitutes unreasonable delay (laches), thereby extinguishing the cause of action and threatening massive disruption to nearly two decades of administrative decisions, elections, and transactions.reliance was placed Ben Sirengo v Kwanza Land Disputes Tribunal Comprising of Onyango Wao & 4 Others [2009] eKLR , and Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR; Daniel Kibet Mutai & 9 others v Attorney General [2019] eKLR; and Wamwere & 5 others v Attorney General (Petition 26, 34 & 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (27 January 2023) (Judgment) Neutral citation: [2023] KESC 3 (KLR), to support the contention that the petition had come too late in the day and was prejudicial to the Respondents.
31. On Lack of Locus Standi, it was submitted that the Petitioner has failed to show how he personally suffered injury or prejudice, rendering him a "busybody" acting on behalf of an undisclosed third party rather than advancing a legitimate public interest or personal grievance. Reliance was place don several decisions including Kenya Railways Corporation 2 others v Okoiti 3 others (Petition 1318 (E019)of2020 (Consolidated)) 2023KESC38(KLR) (16June2023) (Judgment) (1); Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others [2013] eKLR Neutral citation: [2013] KECA 445 (KLR); Okoiti v Portside Freight Terminals Limited & 12 others (Petition E011 of 2024) [2025] KESC 44 (KLR) (30 June 2025) (Judgment) ;and Ruwa & 2 others v Secretary Independent Electoral and Boundaries Commission 9 others (Civil Appeal 9 of 2013) 2016 KECA 371 (KLR) (8 July 2016) (Judgment) to urge the court to strike off the 2 nd to 5 th Respondents from the petition as they are not persons for purposes of these proceedings, capable of being sued. Counsel submitted that the petition is accordingly incompetent for Misjoinder of Unincorporated Parties , and that the 3rd, 4th, and 5th Respondents are internal office titles rather than legal persons capable of being sued, and should be struck out of the petition.
32. On Exempted vs. Registered Society Status, counsel submitted that the 2 nd Respondent Church is an "exempted society" under Section 10 of the Societies Act (Cap 108). The Respondents argued that requirements governing the mandatory registration of constitutional amendments apply only to registered societies, not exempted ones.
33. On the Validity of Leadership Qualifications, the Respondents defend the academic requirements (such as degrees in theology and financial administration) for high church offices, arguing that they are lawful, non-discriminatory, and within the church's discretion to establish for sound governance.
34. The Respondents submit that in this case, the Petition is a proxy war sponsored by an individual (Rev. Andrew Atunga Ongondo) who was disqualified from running for Diocesan Bishop due to failing the academic requirements set out in the 2008 Constitution. They maintain that the petitioner is estopped from bringing such a petition since Rev Atunga is a beneficiary of the same constitution which is being impugned and that the issues raised are not public interest or constitutional questions but for personal gain.
35. They urged the court to strike out the 2 nd , 3rd, 4th, and 5th Respondents from the petition; expunge the various paragraphs of the Petition and Supporting Affidavit containing unsubstantiated, scandalous allegations (e.g., claims of financial mismanagement and comparisons to religious indoctrination) and dismissal of the Petition in its entirety with costs.
ANALYSIS AND DETERMINATION
36. I have considered the petition, supporting affidavit, responses to the Petition and the respective Parties’ written submissions. the main issues for determination are:
i. Whether the Respondents have legal standing (locus standi) to be sued as Respondents
ii. Whether the petition offence the doctrine of Constitutional avoidance.
iii. Whether the Petition offends the doctrine of exhaustion of remedies
37. There are several other questions that the Court will answer in the course of resolving the issues identified, commencing with preliminary issues which need not go into much discussion based on the evidence available on record and the law. This question is whether the 2 nd Respondent is a registered society or whether as asserted by the Respondents, was exempted from registration.
38. On record, is evidence by way of two certificates of exemption from registration issued to the 2 nd Respondent, which evidence has not been controverted. The first certificate is No. 1653 dated 27/7/1966 while the second certificate of exemption is the one dated 21/9/2011.
39. The exemptions were granted under section 10 of the Societies Act and following successful applications pursuant to section 9 of the Societies Act.
40. Section 9 of the Act provides:
9. Society to apply for registration or exemption
Every society shall, in the prescribed manner and within twenty-eight days after the formation thereof, make application to the Registrar for registration or for exemption from registration under this Act.
41. Under section 10 on the manner of effecting registration or exemption from registration of a society:
10. Manner of effecting registration or exemption from registration
(1) Upon application being made in the prescribed manner for registration of a society, the Registrar shall, subject to this Act, register the society by entering in the register of societies, kept for the purpose, the prescribed particulars and the date of the entry.
(2)Upon application being made in the prescribed manner for exemption of a society from registration, the Registrar may, with the approval of the Cabinet Secretary, so exempt the society, and if he does not so exempt the society he shall treat the application as an application for registration and shall, subject to the provisions of this Act, register the society.
( 3)Upon registering a society or exempting it from registration , the Registrar shall issue to the society a certificate of registration or exemption from registration in the prescribed form.
42. Section 13 provides for rescission of exemption from registration and states:
13. Rescission of exemption
The Registrar may, with the approval of the Cabinet Secretary, at any time rescind the exemption of a society from registration given under section 10 of this Act, and if he does so he shall forthwith notify the society thereof:
Provided that the society, if it is not a society of one of the kinds specified in paragraphs (i), (ii) and (iii) of the proviso to section 4 (1) of this Act, may, within a period of twenty-eight days from the date of the receipt of notification of the rescission, apply for registration under this Act, and where the society does so it shall not, unless and until such application is refused, be an unlawful society, notwithstanding the said section 4 (1).
43. In the instant case, there is evidence of exemption from registration of the 2 nd respondent. There is no evidence that the exemption was rescinded in which event, a notice of rescission of exemption from registration would have been issued by the Registrar to the officials of the society who would then have 21 days to apply for registration of the society under the Act.
44. Having said that, Rule 2 of the Societis Rules, provides for what an applicant for registration or exemption from registration of a society should provide to the Registrar. The Rule states:
Every application made for registration or exemption from registration under section 9 of the Act shall —
(a)be made in duplicate in Form A in the Schedule to these Rules;
(b)be typewritten;(c)be signed by three of the officers of the society;
(d)be sent to the Registrar together with the prescribed fee;
(e)be accompanied—
(i )subject to any direction of the Cabinet Secretary, by two type-written or printed copies of the constitution or rules of the society ; and
(ii)by a notification in duplicate of the situation of the registered office and postal address in Form B in the Schedule to these Rules signed by three officers of the society.
45. From the above provisions, there is no way the Registrar can register or exempt a society from registration without being satisfied that the requirements under the Act and the Rules are met. Upon being satisfied that an application satisfies the requirements set, the Registrar then issues a certificate in Form D, in the Schedule to the Rules as stated in Rule 5 of the Societies Rules.
46. Critically, an application for registration or exemption from registration must be accompanied by a constitution of the intended society, setting out the objectives of the society as stipulated in section 19 of the Act and the Schedule to the Act. This is critical as registration or exemption may be rejected if the objectives or purposes of the society are to carry out unlawful activities or if it does not satisfy the requirements under the Acy and Schedule.
47. It is however important to note, as submitted by the respondents, that an exempted society is not subject to continuous and strict supervision by the Registrar, unlike a registered society. The exempted society must however comply with provisions of the law including the provisions of section 21 failure to which the exemption may be rescinded and it be required to apply for registration within 21 days from the date of rescission. Section 21 provides:
21. Exempted society to inform Registrar of amendment of name, etc.
(1)Every exempted society which—
(a)amends its name or objects; or
(b)becomes a branch of or affiliated to or connected with, any organization or group of a political nature established outside Kenya; or
(c)dissolves itself, shall within fourteen days from the date of effecting such amendment or other matter as aforesaid give to the Registrar notice thereof in writing signed by three of the officers of the society.
(2)Any exempted society which contravenes subsection (1) of this section shall be guilty of an offence.
48. For the foregoing reasons, I am satisfied that the 2 nd Respondent society was an exempted society from registration.
49. Onto the main issues identified for determination, first, is whether the 2 nd , 3 rd 4 th and 5 th respondents as named are capable of suing and being sued in their own names as listed.
50. The 2 nd Respondent is described as a registered religious society within the meaning of the Societies Act. The 3rd and 4th respondents are described as officials of the second respondent, responsible for its governance and administration. The 5th respondent is described as the Arch-Bishop of Evangelical Lutheran Church in Kenya, being the chief executive and spiritual leader of the church, vested with ultimate authority over its administration and governance structures, and who is sued in its official capacity for sanctioning, Constitution and the resultant decisions affecting members of the church.
51. With thos
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