A unique lawsuit seeking to lift immunity enjoyed by judges against litigation for anything done in performance of their judicial functions has been forwarded to Chief Justice Martha Koome for assignment to a multi-judge bench.
This follows a finding by Justice Bahati Mwamuye that the case raises substantial and unique issues of law, such as whether a judge can be held liable to financial losses suffered by a litigant due to an erroneous judgment.
“This court, pursuant to the provisions of Article 165 (4) of the Constitution certifies that the Petition herein raises substantial questions of law under Articles 165 (3)(b) and (d) of the Constitution,” said Justice Mwamuye.
“Consequently this court file shall forthwith be forwarded to the Honourable Chief Justice for empanelment of a multi-judge bench of Judges of the High Court, not being less than three, to hear and determine this matter,” he ordered.
The case was filed by Estate Sonrisa Limited, a tourist’s hotel based in Diani, which is seeking Sh142.4 million in form of damages from High Court judge Naikuni Lucas Leperes, businessman Samuel Kamau Macharia and the government jointly.
The company claims that in February 2022 Justice Naikuni caused it to suffer a loss of property worth Sh142.4 million by allowing execution of a court order for demolition of structures encroaching into a neighbouring land.
Through lawyer Nelson Havi, the company alleges that the judge allowed Mr Macharia's request to execute part of the Environment and Lands Court (ELC) decree that had been set aside by the Court of Appeal in April 2020.
It wants the judge together with the government and Mr Macharia compelled to jointly pay the damages.
While certifying the case as one that raises a substantial questions of law, Justice Mwamuye noted that the need for a multi-judge bench to hear and determine the petition is “so manifest that it is inconceivable that any party would argue the contrary, or perhaps be able to convincingly argue that this is not a matter that requires certification”.
“These questions of judicial immunity, decisional independence, transparency and accountability of judges of the superior courts, and the interplay between various constitutional provisions under Chapters Four (The Bill of Rights), Chapter 6 (Leadership and Integrity), Chapter 10 (The Judiciary), Chapter 13 (The Public Service), and Chapter 15 (Commissions and Independent Offices) that this Petition seeks answered are tremendously significant and have profound implications,” stated Justice Mwamuye.
He said: "As a nation whose courts generate jurisprudence that persuades courts across the commonwealth and beyond, the task of answering those questions can only come from a multi-judge bench."
Judge Mwamuye observed that the company’s petition raises novel points of law that would require a substantial amount of time and judicial application to be disposed of.
Combined with the high level of public interest that has been generated around the topics of judicial immunity, decisional independence, and transparency and accountability of judges, he said the matter is worth consideration by an expanded bench.
The reason for a multi-judge bench comprising at least three judges comes in cases that raise novel, weighty, complex, and significant public interest questions of law.
Among the issues the yet-to-be empaneled bench is expected to address, is the legal recourse of disgruntled litigants when an erroneous judgment causes financial harm.
Currently, individuals or entities dissatisfied with the decision of judicial officers are only allowed to file appeals or seek review of the contested verdict.
If they feel that the judicial officer misconduct him/herself, they are allowed to file complaints to the Judicial Service Commission to pave way for a disciplinary action.
The existing legal regime does not allow disgruntled litigants to extend liability of the judicial officers to payment of damages. The outcome of the lawsuit could set a precedent on judicial accountability.
The petition originates from a beach plots' boundary dispute between the company and Mr Macharia. The land is based in Diani, Kwale county.
While providing a timeline and sequence of events surrounding the dispute, the company believes judge Naikuni is liable for the loss resulting from the procurement, issuance and enforcement of the contested court order dated February 17, 2022.
"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 Havi.
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 surrounds implementation of a judgment of the Environment and Lands Court (ELC) 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 a surveyor taking into account the areas shown on the respective titles.
The court papers 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 second 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 Kwale County to determine whether the company's property had encroached upon the adjacent property.
However, he says on February 16, 2022 a miscellaneous cause application was filed in court seeking the assistance of the Diani police to execute the said decree. The request was granted by Justice Naikuni, leading to the alleged destruction, according to Mr Havi.
The lawyer argues that 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, narrates the lawyer, 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 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.
