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Churches caught in court battles over land affairs

NATIONAL
By Daniel Chege | July 11th 2021
Members of One Accord Christian Church demolishing a gate erected by St Gertrude Catholic Church on a disputed parcel of land at Ngata area in Nakuru County on November 2, 2019. [Kipsang Joseph, Standard]

Several churches are on the verge of losing prime parcels of land and other property worth millions of shillings owing to court battles.

Some of the property in dispute have title deeds registered in the name of the churches but as the saying goes ‘the law is an ass.’

The Sunday Standard has learnt that most of the disputes are as a result of the trust the church has bestowed on those allocating or gifting them the property.

Bishop Mike Brawan of Metro Church International says “the men of cloth” have put so much trust on government officials and land brokers, something he says has greatly contributed to the disputes.

“We believe in people mandated by law to carry out land transactions but instead of us processing the deeds immediately, we start developing the property and when land speculators discover those weaknesses, they take advantage by processing the deeds in different names and later demand that the church vacate the property,” he says.

In some instances, Brawan opines, fraudsters have taken advantage of religious institutions because of the notion that men of God cannot battle and would vacate the property quietly.

In September last year, World House of Prayer Ministries Church attempted to solve a Sh217 million land dispute outside court.

However, Justice John Mutungi of the Environment and Land Court (ELC) in Nakuru, dismissed the church’s application against brothers Ila Haria and Sushila Shah. Mutungi who termed the application null and void ruled that the dispute could only be solved inside court.

The brothers have sued the church over possession of the 15 acres valued at Sh217 million.

The church in its preliminary objection through Bishop Peter Ikatwa, wanted the suit referred to arbitration as indicated in its sale agreement with the brothers, dated December 18, 2013.

Members of One Accord Christian Church demolishing a perimeter wall erected by St Getrude Catholic Church [Kipsang Joseph, Standard]

However, Mutungi ruled that the church didn’t follow the procedure laid out in the Arbitration Act.

Although the Act states that a preliminary objection must be filed the same time a party enters appearance, Mutungi noted that the church entered appearance on January 9, 2020 but filed its objection on January 28, 2020.

“The defendant (World House of Prayer Ministries Church) filed its preliminary objection 19 days late,” ruled Mutungi. The court also noted that the agreement provided that the jurisdiction of the court would intervene if one party failed to adhere to the rules of negotiation.

“I am satisfied that the preliminary objection is not compelling enough to stop the present suit. I hereby dismiss it,” ruled Mutungi.

Bishop Ikatwa wanted the court to allow parties to exhaust the arbitration way of dispute resolution before involving courts.

The brothers in their December 17, 2019 suit, seek judgement against the church for Sh145 million.

They state that they entered into an agreement to sell the land to the church for Sh217 million, but the church only paid Sh72.5 million, defaulting on Sh145 million.

They seek the balance, interests, general damages for breach of contract and the cost of the suit or else an order for the cancellation of the sale Agreement.

The ELC Court in Milimani, Nairobi, reversed its orders allowing Trustees of Full Gospel Churches of Kenya Milimani Law courts to fence its church compound within Nairobi County.

Justice Elijah Obaga had on October 22, 2019 issued an order for the church to put up a temporary fence for protection, after reports of vandalism of the churches’ property.

“Owing to the issues of vandalism of church properties which had no fence, I granted orders allowing the Respondents (church) to put up a temporary fence to secure the church properties pending hearing of the application,” said Mr Obaga.

However, after Reverend Stephen Mbogo sued the church and its trustees; Bishops Geoffrey Mutheca and Eli Rop, the court reversed its decision.

In his October 22, 2020 application, he urged the court to set aside its orders with the claim that the church constructed a permanent perimeter fence encroaching his plots and other church members.

“Though the respondents obtained the orders on October 22, 2019 they unlawfully served me on October 15, 2020 after they had embarked on wall construction that invaded my property,” said Rev Mbogo.

“The respondent misunderstood the court’s orders and proceeded as if the entire application had been allowed. There was no way such an application would have been determined in the absence of the Applicant,” ruled Obaga

He ruled that the church trustees were in clear breach of the order allowing them to put up a temporary fence and set aside the 2019 orders.

The registered trustees of Presbyterian Churches of East Africa Bamburi Church in Mombasa, also found themselves in the limelight after a private developer, Michael Mwakio’s suit.

On May 26, 2021, Justice Charles Kimutai issued a temporary order, restraining the church leaders from selling, setting up structures or possessing a property in Mombasa until further orders.

Mr Kimutai ruled that Mwakio had produced enough evidence including a certificate of title, green card and transfer documents to warrant the injunction orders.

“A green card dated October 13, 2013, produced showing that the land was transferred from Mwakio to the church, differs with the transfer of land in Settlement Scheme dated December 30, 2016,” ruled Kimutai.

He said that the contradiction raised serious questions on ownership of the suit property and for the interest of justice, only fair hearing would settle the matter.

He noted that Mwakio had attached photographs showing that the church had commenced development on the suit property. Mwakio sued the church on July 30, 2020 and sought court orders to bar the church from interfering with his land.

situated in Mwambelegeza, Mombasa County.

He claims that he is the proprietor of the parcels of land after he purchased it in 2002 from one Hassan Amin and issued with a certificate of title dated March 11, 2005.

He states that when he moved to take possession of the property, the church trustees laid claim on it.

A green card he perused showed through an entry dated October 13, 2013, that his title was passed to Settlement Fund Trustee and title deed issued to the church on September 6, 2017.

Transfer documents showed that the suit property was transferred to the church on August 24, 2017.

“There are some illegalities as to how the suit property was transferred from the applicant (Mwakio) to the defendant (church) and fraud must have been involved,” reads the suit.

However, on September 25, 2020, the church through its secretary Venanzio Gathu opposed the application claiming that it purchased the land.

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