Court rejects out-of-court settlement of ACK gay case

Wednesday February 06 2019
Bishop Kagunda

Bishop of the Anglican Church of Kenya Mt Kenya West Diocese Joseph Kagunda addresses faithful outside St Peter's Cathedral in Nyeri County on July 17, 2018. FILE PHOTO | NATION MEDIA GROUP


A homosexuality case pitting three Anglican Church clerics against Bishop Joseph Kagunda of Mt Kenya West diocese took a new twist Wednesday after a court refused to adopt an out-of-court agreement filed by a mediator.

Justice Abigail Mshila said the agreement drafted by Mr Joakim Mulama Oundo of the court-annexed mediation program could not be legally binding because it was undated and was not signed by the bishop or the church trustees.


The judge further pointed out that two people unknown to the court had signed the document on behalf of Bishop Kagunda and the Church. The two people are Venerable Canon Gerald Muriithi and Venerable Samuel Waweru, according to the document.

“For the mediation agreement to be binding the two respondents, Bishop Kagunda and the registered trustees of the Anglican Church of Kenya, must sign in person. The court does not know the two people and the mediation agreement is also not dated,” said Justice Mshila.

According to the document, Bishop Kagunda did not attend any of the four mediation sessions held at the Nyeri Old Courts building in December and January and was instead represented by the Canon Muriithi.


But Archdeacon John Gachau and Reverends James Maigua and Paul Warui attended the mediation sittings and appended their signatures on the final agreement.

While referring the case back to the court-annexed mediation the judge directed the mediator to expound on whether the church should pay the three clerics damages.

The mediator was also directed to clarify on who should bear the costs of the suit, which started in 2015 after Bishop Kagunda revoked preaching licences of the pastors due to allegations of engaging in homosexuality.


Lawyer David Onsare, for the clerics, protested that the agreement was not clear on issues of damages and costs.

In the agreement, the mediator had said "the issues of costs of the suit and amount to be paid (if any) to be determined by the court". However, lawyer Onsare said the statement was confusing.

The Church Legal Chancellor Wachira Nderitu also complained that the agreement was not clear as he also agreed to have the matter referred back to mediator.

In her ruling, Judge Mshila directed the church and the clerics to comply with the other items of the agreement, which include the priests resuming their pastoral duties and adhering to the church regulations.


The agreement indicates that Bishop Kagunda will marshal the congregation to accept the three clerics back to work and consultations be done before they are posted to their new working stations.

Bishop Kagunda will also accompany the three clerics to their newly posted parishes either in person or through the parish councils.

“The Bishop shall communicate to Christians regarding the agreement which shall be implemented within a period of 30 days. The clergy shall conduct themselves in line with established guidelines, code of conduct and expectations of the Christians,” reads the agreement.

Further, the document indicates that the church and its agents must observe strict adherence to laid down discipline procedures and processes in execution of mandate.

Justice Mshila said the case should be mentioned before the court within 30 days to confirm compliance and decide whether to adopt the new agreement the mediator will file.

The three clerics moved to court seeking damages, arguing that they suffered psychological trauma following the ex-communication from church and implication to homosexuality.

They wanted court to compel Bishop Kagunda to issue an apology and compensate them for defamation because of implicating them into homosexuality and suspending them from pastoral duties.