Court upholds election of ACK Maseno East Bishop Bernard Otieno Owuor

The position fell vacant on July 15, 2024, following the retirement of the immediate former Bishop Rt Reverend Joshua Owiti Ouma, upon attaining the mandatory retirement age of 65 years as stipulated under the Kenyan Constitution and that of the Anglican Church.

Mr Opiyo stated in his affidavit that both constitutions expressly require that, upon the office of the Bishop becoming vacant, 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 finalised no later than one month before the actual date of retirement.

According to him, the Diocesan Chancellor contravened the aforesaid provisions when he issued a letter to notify members of the Diocesan Synod and the Provisional Standing Committee of the church of the existence of the vacancy and outlining the procedures for the nomination of persons seeking to fill the same.

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The said letter further directed that all applicants and nomination papers be submitted to his office on or before October 8, 2024.

When he presented himself before the search committee on the appointed date, he was turned away on the grounds that the documents he submitted contained unresolved issues, which were also not disclosed to him, and that he would consequently not be interviewed.

Mr Opiyo also claimed the committee gave Mr Owuor an unfair advantage over other candidates and placed him in a position of significant conflict of interest where he had earlier access to his documents while simultaneously occupying a decision-making role in respect of an election in which he is a candidate.

Mr Owuor was the Assistant Diocesan Administrative Secretary at the time he was applying to be Bishop.

He was not among the three shortlisted candidates for the position, yet he claimed that he was qualified.

In response, the Anglican Church, through Archbishop Jackson Ole Sapit, stated that Mr Opiyo was informed explicitly through his lawyer that his nomination could not proceed because it violated sections of the church’s constitution.

According to Bishop Sapit, the declaration of vacancy required the petitioner to submit specific documents, including proof of age through a 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.

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The petitioner failed to provide these essential documents, making it impossible to determine his qualifications.

In light of the arguments presented before him, Kisumu High Court Judge Justice Joe Omido dismissed the petition for lack of merit.

“The search committee acted lawfully and proportionately in enforcing the church’s constitution,” said Justice Omido.

The judge also ruled that exclusion from the interview does not constitute degrading or humiliating treatment. Administrative exclusion based on objective eligibility does not violate dignity.

He had claimed that his exclusion from the list of shortlisted candidates was discriminatory treatment. The court doesn’t believe so.

“Discrimination requires unequal treatment on a prohibited ground. The exclusion was due to failure to meet the nomination requirements, applied objectively to all candidates. No violation was established,” said Justice Omido.

The court ruled that excluding a non-compliant nominee was lawful and within the Search Committee’s mandate.

Each party was ordered to bear its cost of the suit.

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