Justice Luka Naikuni.
The High Court has been petitioned to determine whether judges can be sued and compelled to pay damages for financial loss suffered by a litigant resulting from a contested judgment in the exercise of their judicial and decisional independence.
In the petition filed by Estate Sonrisa Limited, a tourist hotel based in Diani, Kwale County, the court is also expected to determine whether a disgruntled litigant is entitled to recover compensation from judicial officers for mishandling of court disputes and decisions that cause losses.
The company has sued Justice Naikuni Lucas Leperes of the Environment and Lands Court (ELC) on grounds that his decision exposed it to a loss of property worth Sh142.4 million.
The other respondents in the suit are the Attorney General and businessman Samuel Kamau Macharia.
The company says it suffered the alleged loss due to Justice Naikuni's decision in 2022, allowing execution of an earlier order for demolition of structures encroaching on a neighbouring property.
At the heart of the case was a beach plots' boundary dispute between the company and Mr Macharia.
Businessman S.K. Macharia appears before the Senate in Nairobi during a hearing on election laws on January 3, 2017. PHOTO | DENNIS ONSONGO | NATION MEDIA GROUP
The company wants the High Court to find that the three respondents (Justice Naikuni, AG and Mr Macharia) are jointly liable for the loss suffered following the destruction of the hotel.
It wants them ordered to pay damages as a result of the procurement, issuance and enforcement of the contested order dated February 17, 2022.
While providing a timeline and sequence of events surrounding the dispute, the company claims that the judge allowed Mr Macharia's request to execute part of the court's decree that had been set aside by the Court of Appeal nearly two years earlier, in April 2020.
"On February 17, 2022, the first respondent (Justice Naikuni) sitting as the ELC Judge in Mombasa granted the request by the third respondent (Mr Macharia) ex-parte, and fixed the matter for mention for directions on March 3, 2022," says the company's lawyer Mr Nelson Havi.
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He adds that on the night of February 23, 2022, Mr Macharia entered upon the property with the assistance of the National Police Service, and destroyed the hotel erected on the land, leading to the alleged financial loss.
The dispute originates from a judgment of the Environment and Lands Court (ELC) sitting in Mombasa dated October 13, 2014, which determined that the company's property measured 0.9 acres. The court had also directed that the beacon between the property and the adjacent land be fixed by the surveyor taking into account the areas shown on the respective titles.
The court filings show that the ELC had further directed that any party found to have encroached on the other's side, should demolish the encroaching structures and vacate the encroached property within 60 days.
However, Mr Havi narrates that the Court of Appeal on April 24, 2020 set aside the part of the judgment, which was directing that "any party found to have encroached on the other party's land shall have 60 days to demolish all structures that might have been erected therein and move and vacate therefrom".
He says the Court of Appeal further directed the Land Registrar, Kwale, together with the Government Surveyor in the county to determine whether the company's property had encroached upon the adjacent property.
"No determination by the Land Registrar, Kwale, together with the Government Surveyor Kwale County on whether the property had encroached upon the adjacent land has been made, filed and adopted by the ELC or the Court of Appeal," says Mr Havi.
Former LSK president Nelson Havi.
He further narrates that on July 14, 2021 Mr Macharia sought to execute the said decree with the supervision of the Officer Commanding Police Station Diani Police Station, a request that was dismissed in November 2021 by the Environment and Lands Court in Mombasa.
Later on February 16, 2022 he claims that Mr Macharia, acting through Five Eleven Traders and Auctioneers, moved the ELC sitting in Mombasa through a miscellaneous cause application, and sought the assistance of the Diani police to execute the said decree. The request was granted, leading to the destruction of the hotel property.
According to Mr Havi, the request for execution of the decree having been made through a miscellaneous cause instead of being filed in the main case should have raised alarm to Justice Naikuni.
He says the company also applied for, amongst others, the setting aside of the order granted to the auctioneers and recusal of Justice Naikuni from the dispute but the same were declined.
The case was also referred to Justices Sila Munyao and Samuel Kibunja, who returned it back to Mr Naikuni's desk, says the lawyer in court filings, adding that on July 18, 2023 the judge directed the company and Mr Macharia to pursue alternative dispute resolution.
"The first respondent (Justice Naikuni) abandoned the miscellaneous cause without determining liability for the irregular, illegal and unlawful order made on February 17, 2022 and how the loss resulting therefrom should be remedied, asserting that he had become functus officio (having performed the office) and that any further issues arising therefrom be addressed in the cause where the decree was issued," says Mr Havi.
He wants the High Court to declare that the judge violated and infringed the company's fundamental rights in issuance of the contested order.
The lawyer is seeking a similar declaration against the National Police Service for enforcing the said court order.
"The petitioner has filed the petition seeking a determination of amongst others, the question of whether the immunity of a member of the Judiciary from legal action for acts done in the performance of a judicial function under Article 160 of The Constitution of Kenya extends to manifestly illegal, unconstitutional and unlawful acts," explains Mr Havi. The petitioner alleges the order was unconstitutional.
He has applied for the petition to be referred to the Chief Justice for empanelment of a bench of at least five judges since the issues raised -lifting of judicial immunity and seeking of damages against a judge - touch on substantial points of law.
"The two questions are substantial, novel and require consideration by an uneven number of Judges, being not less than five to be assigned by the Chief Justice," argues Mr Havi in the petition backed by an affidavit of the company's director Iwona Strzelecka. They contend that judicial immunity does not extend to unconstitutional court orders.
The case, which could set a precedent on judicial accountability,
is pending hearing directions but the respondents have not filed their responses.
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