[2005] KEHC 1307 (KLR)
The court held that section 14(2) of the Constitution provides the President with immunity from civil proceedings while in office, whether the cause of action arose before or after assuming office. This immunity is procedural, not substantive, and merely suspends the right to pursue civil claims against the...
Source-derived case information.
- Citation
- [2005] KEHC 1307 (KLR)
- Parties
- Plaintiff: Abdul Karim Hassanally; Plaintiff: Nyota Service Station Limited; Defendant: Westco Kenya Limited; Defendant: Mwai Kibaki; Defendant: Kibaki Mureithi; Defendant: Dr. John Kabiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 1338 of 1997
- Procedural Posture
- Civil Suit / Ruling on Oral Application to Strike Out Second Defendant
- Outcome
- Application allowed; second defendant struck out from the suit without prejudice to reinstitution after presidency.
- Legal Topics
- Presidential Immunity, Striking Out Parties, Civil Liability of President
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdul Karim Hassanally
Plaintiff
Nyota Service Station Limited
Plaintiff
Westco Kenya Limited
Defendant
Mwai Kibaki
Defendant
Kibaki Mureithi
Defendant
Dr. John Kabiru
Defendant
Procedural Posture
Civil Suit / Ruling on Oral Application to Strike Out Second Defendant
Legal Issues
- 1 Whether the President of Kenya is immune from civil proceedings while in office under section 14(2) of the Constitution.
- 2 Whether civil proceedings instituted before a person becomes President can continue against him while in office.
- 3 Whether the immunity under section 14(2) is absolute or limited to official acts.
Ratio Decidendi
The court held that section 14(2) of the Constitution provides the President with immunity from civil proceedings while in office, whether the cause of action arose before or after assuming office. This immunity is procedural, not substantive, and merely suspends the right to pursue civil claims against the President until he leaves office. The provision does not absolve the President from civil liability; rather, it denies the court jurisdiction to entertain such claims during the President's tenure. The plaintiffs retain the right to reinstitute the suit once the President ceases to hold office. The court further found that this constitutional protection is not contrary to public policy...
Court Disposition
Application allowed; second defendant struck out from the suit without prejudice to reinstitution after presidency.
Orders
- The name of the second defendant is struck out from the suit without prejudice to the plaintiffs' right to reinstitute the suit after the second defendant ceases to be President.
- Each party will bear his own costs of the application and of the suit.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 1338 OF 1997
ABDUL KARIM HASSANALLY………….….1ST PLAINTIFF
NYOTA SERVICE STATION LIMITED…....2ND PLAINTIFF
VERSUS
WESTCO KENYA LIMITED………..…….1ST DEFENDANT
MWAI KIBAKI……………………….…….2ND DEFENDANT
KIBAKI MUREITHI……………....……….3RD DEFENDANT
DR. JOHN KABIRU………………………..4TH DEFENDANT
RULING
This is the oral application by the second defendant for an order that the suit against the second defendants be struck out on the ground that the second defendant being the President of the Republic of Kenya is by virtue of section 14(2) of the Constitution immune from Civil Proceedings.
Section 14(2) of the Constitution provides:
“No civil Proceedings in which relief is claimed in respect of anything done or omitted to be done shall be instituted or continued against the President while he holds office or against any person while he is exercising the functions of the Office of the President.”
Section 14(1) of the Constitution protects the President from any criminal proceedings whatsoever while he holds office . Section 14(3) of the Constitution provides that the period of time during which a person holds or exercises the function of the office of the President shall not be taken into account in calculating any prescribed period of limitation for bringing criminal or Civil Proceedings against a person who becomes the President.
The marginal note to section 14 of the constitution states:
“ Protection of President in respect of legal proceedings during office”
Mr. Ongicho for the plaintiffs submitted, inter alia, that the President is liable in respect of all suits commenced against him prior to taking office. He further contended that the immunity enjoyed by the president is not absolute and does not extend to matters of private nature.
Section 14(2) of the Constitution construed with the aid of the marginal notes, in my view, means what it says, that Civil Proceedings cannot be instituted against the President while he holds office or if instituted before he became the President such civil Proceedings cannot continue against the President. But Section 14(2) does not absolve the President from Civil Liability in respect of claims arising either before or after he becomes the President. He can still be sued after he leaves office.
That is to say that section 14(2) of the Constitution merely suspends the recovery of any claim of a Civil nature through legal proceedings against a President and denies court jurisdiction against the President while he holds office but does not protect the President from any Civil liability.
Indeed section 14(3) of the Constitution protects any such claims which cannot be brought or continued while the President holds office from being defeated by any law of limitation.
The Constitution is the will of the people and I do not think that the constitutional provisions protecting the President from legal proceedings can be said to be against the Public Policy.
The President has his constitutional rights like everybody else and this court is bound to protect such Constitutional rights from violation.
For the foregoing reasons I allow the oral application and strike out the name of the second defendant from the suit without prejudice to the right of the plaintiffs to reinstitute the suit after the second defendant ceases to be the President of the Republic of Kenya.
Each party will bear his own costs of the application and of the suit.
Dated at Nairobi this 10th day of April, 2003
ERASTUS M. GITHINJI JUDGE