[2020] KESC 43 (KLR)

Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) (15 May 2020) (Judgment)

Bellevue Development Company Ltd v Francis Gikonyo & 3 others [2020] eKLR

Neutral citation: [2020] KESC 43 (KLR)

Republic of Kenya

In the Supreme Court of Kenya

Petition 42 of 2018

DK Maraga, CJ & P, PM Mwilu, DCJ & V-P, MK Ibrahim, SC Wanjala & I Lenaola, SCJJ

May 15, 2020

Between

Bellevue Development Company Ltd

Petitioner

and

Hon. Justice Francis Gikonyo

1st Respondent

Hon. Justice Charles Kariuki

2nd Respondent

Paul Mwaniki Gachoka

3rd Respondent

Vinayak Builders Limited

4th Respondent

(Being an appeal from the Judgment of the Court of Appeal sitting in Nairobi in Civil Appeal No. 239 of 2017 (P. N Waki, K. M’Inoti & P.O Kiage, JJA) delivered on 21st September 2018)

Procedure to be followed by a litigant claiming fraud, dishonesty and perversity against a judge

The petitioner filed an appeal from the judgment of the High Court contending that the 1st and 2nd respondents had acted in bad faith and breached its rights to fair trial. The Court of Appeal dismissed the petitioner’s appeal thus leading to the filing of the instant appeal. The court highlighted the procedure to be followed by a litigant claiming fraud, dishonesty and perversity against a judge.

Reported by Kakai Toili

Judicial Officers– judicial immunity – rationale and purpose – judicial immunity vis-à-vis impunity – where it was claimed that judicial officers acted fraudulently and dishonestly - what was the distinction between judicial immunity and impunity - what was the nature of judicial immunity - Constitution of Kenya, 2010, article 160(5).Judicial Officers– judicial immunity – factors to consider in determining the existence of judicial immunity – acting in good faith, acting in excess of jurisdiction and seizure of absent jurisdiction - acting in good faith vis-à-vis bad faith - acting in excess of jurisdiction vis-à-vis seizure of absent jurisdiction - when would a person be considered to have acted in bad faith – what was the distinction between acting in excess of jurisdiction and seizure of absent jurisdiction - Constitution of Kenya, 2010, article 160(5).Judicial Officer– judges – judges’ conduct – where a litigant made claims of fraud, dishonesty and perversity against a judge - what was the procedure to be followed - Constitution of Kenya, 2010, article 168. Words and Phrases- good faith – definition of good faith - a state of mind consisting in honesty in belief or purpose, faithfulness to one’s duty or obligations, observance of reasonable commercial standards of fair dealing in a given trade or business, or absence of intent to defraud or to seek unconscionable advantage - Black’s Law Dictionary, Ninth Edition at page 713.

Brief facts There was a dispute between the petitioner and the 4th respondent, and an arbitrator was appointed to determine the dispute. The arbitrator issued directions as to when the statement of claim was to be filed. The 4th respondent failed to comply with the directions and instead, filed an application seeking extension of time to file its statement of claim. The arbitrator did not issue any directions or orders on that application. The 4th respondent later on served the arbitrator and the petitioner with its statement of claim. The arbitrator issued a ruling stating that he had the jurisdiction to determine the dispute. Aggrieved by that decision, the petitioner filed a suit at the High Court which held that there was no valid claim before the arbitrator. No appeal was preferred against that judgment. Later on, the 3rd respondent was appointed as the sole arbitrator to handle the dispute. The petitioner subsequently filed an application at the High Court seeking to stop the arbitration proceedings.The 1st respondent issued a ruling determining that the arbitration proceedings before the previous arbitrator were distinct from those pending before the sole arbitrator and that they could proceed. In June 2014, the petitioner filed an application for review of the decision of the 1st respondent. The 2nd respondent, presiding over the review application dismissed the application. Aggrieved by the decisions of the 1st and 2nd respondents, the petitioner filed a petition at the High Court which held that it lacked the jurisdiction to hear and determine the matter as it sought to enquire into decisions of courts of equal status. The petitioner filed an appeal at the Court of Appeal, however, it did not pursue the appeal despite being issued with a hearing notice. The petitioner also filed an appeal from the judgment of the High Court contending that the 1st and 2nd respondents had acted in bad faith and breached its rights to fair trial. The Court of Appeal dismissed the petitioner’s appeal thus leading to the filing of the instant appeal.

Issues

What was the procedure to be followed by a litigant who made claims of fraud, dishonesty and perversity against a judge?

What was the nature, rationale and purpose of judicial immunity?

What was the distinction between judicial immunity and impunity?

When would a person be considered to have acted in bad faith?

What were the factors to consider in determining the existence of judicial immunity?

What was the distinction between acting in excess of jurisdiction and seizure of absent jurisdiction?

Relevant provisions of the Law

Constitution of Kenya, 2010 Article 160(5) A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.

Held

Article 160(5) of the Constitution entrenched the immunity of judicial officers who acted in good faith. The immunity granted by article 160(5) encapsulated protection from legal proceedings founded on acts committed or omissions made by judges in the lawful performance of their judicial functions.

The concept of judicial immunity was not without foundation. Judicial immunity was an important tenet in the delivery of justice and the maintenance of the rule of law. For the proper administration of justice, judges should freely express themselves in matters brought before them. A judge, as well as other judicial officers, were required to have confidence in carrying out their judicial functions without the fear that they would be prosecuted or harassed for their acts or omissions.

The rationale for judicial immunity was the preservation of independent decision-making capabilities of judicial officers; immunity for judicial acts was thus necessary so that judicial officers could make the sometimes controversial decisions that were their judicial obligation and mandate to make, independent of personal considerations, including fear of personal liability. The concept of judicial immunity was also an important aspect of judicial independence under the doctrine of the separation of powers. The protection offered to judicial officers in article 160(5) of the Constitution was inherent in the independence of the Judiciary as a state organ within the doctrine of separation of powers.

It would be repugnant to the cause of justice if judges acted in fear of legal actions being brought against them for decisions they made in the course of discharging their mandate. The immunity granted by article 160(5) of the Constitution was not necessarily for the benefit of the judicial officer concerned. It was for the public and in particular for litigants appearing before the courts.

Besides freedom of thought, expression and action, the other cardinal factor encapsulated in judicial immunity was finality. It would be a travesty of justice if disgruntled litigants were permitted to sue judges who ruled against them thus prolonging litigation unnecessarily and personalizing matters that judges ought not to have had a personal interest in.

There was a clear distinction between judicial immunity and impunity, and it was important that judicial officers understand that they needed not find themselves on the side of latter. Article 160(5) of the Constitution drew the line between immunity and impunity; the line crossed where acting lawfully and in good faith met willful and negligent abandonment of the oath of office to uphold the integrity and independence of the Judiciary and to dispense justice without fear or favour. Article 160(5) was not blind to that inherent distorted character between judicial immunity and impunity, and thus provided a resonating standard for judicial officers to act according to the tenets enunciated under the Constitution; to ensure that there was rule of law, protection of fundamental rights and freedoms in the Bill of Rights and to do justice to all. The latter point spoke to the lawful action qualification as it did to the good faith expectation.

Judicial immunity was meant to provide protection to judicial officers from third parties’ interference, influence or obstruction. Judicial immunity was also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and ensure transparency and accountability. A judge acting in his official judicial capacity thus enjoyed immunity from liability for judicial acts performed within the scope of his or her jurisdiction.

Article 160(5) of the Constitution granted judicial officers immunity if they acted in good faith. The antithesis to acting in good faith would be to act in bad faith, with a willful intent to act dishonestly or unfaithfully in the performance of judicial acts. The Constitution did not define bad faith. Bad faith included malicious or fraudulent, dishonest or perverse conduct as well as gross illegality. Bad faith existed only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that revealed a breakdown of the orderly exercise of authority so fundamental that absence of good faith could be reasonably inferred and bad faith presumed.

Besides acting in good faith there was a two-tiered approach to determining whether judicial immunity applied:- whether the acts were judicial acts; and

whether the acts were acts performed by the judge in his judicial capacity.

Regardless of any alleged violation of due process, procedural errors did not deprive a judge of immunity because due process necessarily attached to any act performed in a judicial capacity.

There was a distinction between excess jurisdiction and clear and deliberate seizure of absent jurisdiction; the former connoted that the judicial officer did not apprehend his jurisdictional limits, and the latter elaborated the deliberate corrupt or malicious seizure of jurisdiction by judicial officers, with obvious consequences on the latter.

Save in a clear case of deliberate and unlawful usurpation or seizure of jurisdiction where none existed or some other glaring impropriety, if a judge acted in the honest belief that his act was within his jurisdiction, he was protected. While acting in that belief, the protection continued notwithstanding any error in his reason for doing the act or his method of doing it. As such, if a judge acting in his capacity as a judge, acted in good faith in the lawful performance of his duties, he had absolute immunity even when he acted in excess of his jurisdiction. The protection or immunity of a judge also went into administrative acts. The immunity accorded to a judge was absolute in the meaning attributed to the expression by article 160(5) of the Constitution.

Fraud was a serious quasi-criminal imputation, a judge whose conduct was fraudulent, dishonest or perverse, was a disgrace to the cause of justice. A judge’s act of bad faith undermined his or her integrity and fidelity to the judicial oath of office. Under the law, the remedy for a litigant making allegations of fraud, dishonesty and/or perversity lay, not in a suit against such a judge but in a petition to the Judicial Service Commission for removal from office under article 168 of the Constitution. Article 168 had an elaborate procedure which entitled both a complaining party and the subject judge the opportunity, both at the Commission and in a tribunal set up under article 168(5) thereof, to a fair hearing. A suit directly against a judge for alleged misconduct or misbehavior was never an expectation of the drafters of the Constitution.

A judge remained unquestionably immune as long as he did not take actions that intentionally and plainly prevented litigants from enjoying their constitutional and statutory rights. The duty imposed on a judge was only to recognize that his own decisions could sometimes be in error and to ensure that orders affecting important constitutional rights could be reviewed or appealed in another court. However, the conduct of a judge who acted mala fides or unlawfully could trigger proceedings before the Judicial Service Commission and could ultimately lead to his removal thus the need for extreme care in the enjoyment of immunity.

It could not be said that the petitioner was denied an opportunity to seek appellate or alternative relief from what it considered an affront to its constitutional right to a fair hearing under article 50 of the Constitution. Other than legal proceedings against the 1st and 2nd respondents, various avenues were available to it, and it was up to it to decide which avenue best suited its interests. The petitioner proffered an appeal to the Court of Appeal. For reasons unknown or unexplained, it chose not to pursue that appeal but instead filed another cause. The petitioner thus knew and initially chose the appeal mechanism as a means of seeking relief but later abandoned it. It could not therefore be heard to claim that it was denied an opportunity to be heard and that there was a violation of its constitutional rights under article 50.

No evidence was provided to support the claim that in dismissing the petitioner’s applications, the 1st and 2nd respondents acted in bad faith and without jurisdiction thus violating the petitioner’s rights to a fair trial in its dispute with the 4th respondent. That was not the act of a serious litigant or complainant even if the 1st and 2nd respondents had no judicial immunity.

Suing a judicial officer for rendering an unfavourable decision rather than appealing or seeking a review was a misconception and a step in the wrong direction on the part of the petitioner. At times, litigants could feel aggrieved by some of the decisions that judicial officers made. However, that was not in any way an exoneration of the petitioner in its actions. To seek relief by apportioning an unwarranted attack on the 1st and 2nd respondents, who were lawfully exercising their judicial function, was not only tantamount to harassment and intimidation of the judicial officers, but also a red herring that the petitioner conceived to deny or delay the 4th respondent’s right to a remedy under their contract.

To amount to impunity, a judge’s act had to be a clear and deliberate seizure of absent jurisdiction. If proved, such acts would not only be an attack on the integrity and conduct of the 1st and 2nd respondents, but also a reprehensible affront to the cause of justice and the independence of the Judiciary. Such acts were tantamount to tarnishing the image of the Judiciary, violating its integrity and putting all judicial officers into disrepute. A mere statement that the 1st and 2nd respondents acted with impunity did not suffice. The petitioner had not brought forth any iota of evidence, let alone credible evidence that the 1st and 2nd respondents acted in bad faith or against the law.

The 1st and 2nd respondents as judges of the High Court acted in accordance to and within their jurisdictional limits under article 165 of the Constitution. They could have rendered decisions which were unpalatable to the petitioner, but that too was within their judicial function. The petitioner chose to challenge those decisions through an unorthodox approach could not be lauded but ought instead to be condemned.

Petition dismissed; petitioner to bear the costs of all the respondents, both in the court and the superior courts below.

Citations CasesKenya AOO & 6 others v Attorney General & another Petition 570 of 2015; [2017] KEHC 6022 (KLR); [2017] eKLR - (Explained)

Bellevue Development Company Limited v Gikonyo & 3 others; Kenya Commercial Bank & 3 others (Interested Parties) Civil Suit 371 of 2016; [2017] KEHC 8344 (KLR); [2017] eKLR - (Mentioned)

Bellevue Development Company Limited v Vinayak Builders Limited & another Civil Case 571 of 2011; [2014] eKLR - (Mentioned)

Bellevue Development Company Ltd v Gikonyo & 3 others; Kenya Commercial Bank & 3 others (Interested Parties) Civil Appeal 239 of 2018; [2018] KECA 330 (KLR); [2018] eKLR - (Mentioned)

Civicon Limited v Kenya Revenue Authority & another Petition 4 of 2014; [2014] KEHC 4064 (KLR); [2014] eKLR - (Explained)

Douglas Kipchumba Rutto v Kenya Anti-Corruption Commission & 8 others Civil Suit 356 of 2011; [2013] KEHC 5464 (KLR); [2013] eKLR - (Explained)

Francis Gitau Parsimei & 2 others v National Alliance Party & 4 others Constitutional Reference 356 & 359 of 2012; [2012] KEHC 2603 (KLR); [2012] eKLR - (Explained)

G.B.M Kariuki v Hon. Fred Kwasi Apaloo Civil Appeal 122 of 1994; [1994] eKLR - (Explained)

In the Matter of Kenya National Commission on Human Rights Reference 1 of 2012; [2014] eKLR - (Explained)

Kanorero River Farm Ltd & 3 Others v National Bank of Kenya Ltd [2002] 2 eKLR 207 - (Explained)

Maina Gitonga v Catherine Nyawira Maina & another Petition 10 of 2014; [2015] KEHC 1656 (KLR); [2015] eKLR - (Explained)

Malike Co. Ltd v Attorney General [2006] eKLR - (Explained)

Martin Nyaga Wambora & 3 others v Speaker of the Senate & 6 others Civil Appeal 21 of 2014; [2014] KECA 377 (KLR); [2014] eKLR - (Explained)

Mate & another v Wambora & another Petition 32 of 2014; [2017] KESC 1 (KLR); [2017] eKLR - (Explained)

Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & 5 others Petition 167 of 2016; [2016] KEHC 8374 (KLR); [2016] eKLR - (Explained)

Moses Wamalwa Mukamari v John Makali & 3 Others Civil Suit 42 of 2012; [2012] eKLR - (Explained)

Ngaya v Judicial Service Commission & 3 others Cause 398 of 2014; [2015] KEELRC 218 (KLR); [2015] eKLR - (Explained)

Peter Ng’ang’a Muiruri v Credit Bank Ltd & 2 Others Civil Appeal 203 of 2006; [2008] eKLR - (Explained)

Speaker of the National Assembly v Karume Civil Application 92 of 1992; [1992] KECA 42 (KLR); [1992] eKLR - (Explained)

South AfricaPublic Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29; 2019 (9) BCLR 1113 (CC); 2019 (6) SA 253 (CC) (22 July 2019) - (Explained)United KingdomSirros v Moore & Others [1974] 3 All ER 776 - (Explained)United States Bradley v Fisher 80 U.S (13 Wall.) 335 20 L. Ed 646 (1871) - (Explained)

Floyd v Baker 12 Co. Rep, 23, 24, 77 Eng. Rep. 1305 (Star Chamber 1607) - (Explained)

Harlow v Fitzgerald 457 US 800 (1982) - (Explained)

Pulliman v Allen 466 U.S. 522 (1984) - (Explained)

Randall v Bingham 74 US (7 Wall) 523 (1868) - (Explained)

Stump v Sparkman 435 U.S 349, 98 S. Ct 1099, 55 L. Ed. 2d 331 (1978) - (Explained)

Regional CourtKombo v Attorney General [1995-98] 1 EA 168 - (Explained)StatutesKenya Arbitration Act (cap 49) sections 14(6); 1617(7); 32A; 35 - (Interpreted)

Constitution of Kenya articles 10; 20(21); 20(2); 20(3); 20(4); 27(1); 40; 50(1); 160(5); 163(4)(a); 259(1) - (Interpreted)

Judicature Act (cap. 8) section 6 - (Interpreted)

Judicial Service Act (cap 8A) In general - (Cited)

Supreme Court Act (cap 9B) section 15(2) - (Interpreted)

Supreme Court Rules, 2012 (cap 9B Sub Leg) rule 3; 9; 33 - (Interpreted)

InstrumentsUnited Nations Basic Principles on the Independence of the Judiciary, 1985 article 16 - (Cited)article 16Texts Garner, BA., (Ed) (2009), Black’s Law Dictionary St Paul Minnesota: West Group 9th Edn

Stephen Craig Voris (1978), A Judge Can Do No Wrong: Immunity is Extended for Lack of Specific Jurisdiction – Stump v Sparkman DePaul Law Review Volume 27 Issue 4 1978

AdvocatesNone mentioned

Judgment

A. Introduction 1. On 5th November 2018, the Petitioner filed the instant Petition pursuant to the provisions of Article 163(4)(a) of the Constitution, Section 15(2) of the Supreme Court Act and Rules 3, 9 & 33 of the Supreme Court Rules. In the Petition, the Petitioner seeks a number of prayers viz; a)That the Judgment and decision of the Court of Appeal (Waki, M, M’Inoti & Kiage, JJA) dated 21st September 2018 be set aside;

b)A declaration that members of the Judiciary do not enjoy absolute immunity under Article 160(5) of the Constitution;

c)A declaration that the decisions made by the 1st and 2nd Respondents violated, denied, infringed upon or contravened the Petitioner’s rights under Articles 27(1), 40 and 50(1) of the Constitution;

d)A declaration that the 3rd Respondent in purportedly presiding in a dispute between the Petitioner and the 4th Respondent denied, infringed upon or contravened the Petitioner’s rights under Article 40 of the Constitution;

e)A declaration that the actions by the 4th Respondent after the conclusive determination of HC Civil Suit No. 571 of 2011 (O.S) denied, violated, infringed upon or contravened the Petitioner’s rights under Articles 27(1), 40 and 50(1) of the Constitution.

2. The Petitioner made a further prayer for costs in the instant Petition, as well as those in the High Court in Civil Suit No. 571 of 2011 (O.S) and Civil Suit No. 371 of 2016 (formerly HC Petition No. 377 of 2016) and the appellate Court in Civil Appeal No. 239 of 2017.

3. The Petitioner alleges that the main issue in contention is the jurisdiction of the High Court to hear and determine an application by the Petitioner against sitting Judges of the High Court with respect to allegations of denial, violation or infringement of the Petitioner’s rights and fundamental freedoms under the Constitution. Additionally, the Petitioner has argued that the interpretation and application by the Superior Courts of Articles 160(5) and 165(6) of the Constitution in relation to judicial immunity of Judges and judicial officers in the exercise of their judicial mandate was contentious and flawed, and further, failed to accord with the principles under Article 259(1) of the Constitution.

4. It is further contended that through the actions and decisions of the 1st and 2nd Respondents, there was a gross violation of the Petitioner’s rights and fundamental freedoms as pronounced under Articles 10, 20(1), 20(2), 20(3) & 20(4), as well as Article 259(1) of the Constitution.

5. The Petitioner furthermore alleges that the appellate Court erred, misapprehended and misconstrued the provisions of the Constitution, particularly regarding the independence of the Judiciary and the tenets of judicial immunity in its interpretation of Articles 160(5) and 165(6) thereof. The Petitioner also avers that the appellate Court considered matters that it ought not to have, and conversely, failed to consider matters that it ought to have in its deliberation and final determination of the appeal before it.

B. Background and Summary of Facts 6. Although the Petitioner contends that the issues for determination before this Court revolve around the violation, infringement and contravention of various Constitutional rights and fundamental freedoms, particularly involving the interpretation and application of the provisions of Articles 160(5), 165(6) and 259(1) of the Constitution, it would nonetheless behove this Court to recapitulate on the salient facts leading to the filing of the Petition of appeal under consideration.

7. On 15th December 2009, the Petitioner, Bellevue Development Company Limited, entered into a contract with the 4th Respondent, Vinayak Builders Limited, in the nature of a standard form contract wherein the Petitioner was the employer whilst the 4th Respondent was the contractor. Under the contract, there was an arbitral clause which provided that any dispute which may arise between the contracting parties ought to be resolved through an arbitration process.

8. Subsequently, there arose a dispute between the Petitioner and the 4th Respondent, following which the 4th Respondent issued a ‘Notice of Suspension of Works’ on 15th March 2011. This was followed by a ‘Notice of Dispute’ by the 4th Respondent on 29th March 2011 pursuant to the provisions of the contract. On 6th April 2011, the Petitioner wrote a letter to the 4th Respondent effectively terminating the contract.

9. On 6th May, 2011, the 4th Respondent wrote to the Chairperson of the Architectural Association of Kenya seeking the appointment of an arbitrator. On 9th May, 2011, the Chairperson responded to the 4th Respondent’s letter and appointed QS Norman Mururu as the sole arbitrator. Pursuant to his appointment, the arbitrator on 30th August 2011 commenced the arbitral proceedings and issued various directions to the parties, including time as to when the statement of claim would be filed by the 4th Respondent.

10. The 4th Respondent failed to comply with the directions of the arbitrator to file its Statement of Claim on or before 14th September 2011. Instead, it filed an application on 15th September 2011 seeking extension of time to file its Statement of Claim—to 22nd September 2011. The arbitrator did not issue any direction or orders on the said application by the 4th Respondent.

11. On 22nd September 2011, the 4th Respondent served the arbitrator and the Petitioner’s advocates on record with its Statement of Claim and supporting documents. However, on 13th October 2011, the Petitioner, through Counsel, challenged the jurisdiction of the arbitrator. On 15th November 2011, the arbitrator issued a ruling on the challenge to his jurisdiction, stating that he had the proper and requisite jurisdiction to hear and determine the dispute between the Petitioner and the 4th Respondent. The dispute thereafter moved to the Superior Courts.

C. Pleadings (i) At the High Court (a) Civil Suit No. 571 of 2011 (O.S) 12. On 15th December 2011, the Petitioner filed High Court Civil Suit No. 571 of 2011 (O.S) contesting the ruling of the arbitrator on the issue of jurisdiction. On 21st March 2012, Odunga J entered Judgment in favour of the Petitioner, holding that there was no valid claim before the arbitrator that was capable of being heard and determined. In his determination, the learned Judge set out that;“Judicial and quasi-judicial proceedings are matters of record hence the need to expressly make a specific order extending time when the same has been done. I therefore find that in the absence of such specific order extending time, the time for complying with the directions given by the arbitrator on 30th August 2011 was in fact not extended.Without extension of the said orders, I find that the arbitrator had no jurisdiction to take any step in the matter since there was no valid statement of claim before him. The only thing he could validly do was to invoke the provisions of Section 26(a) of the Arbitration Act and terminate the proceedings. Any other order made by the arbitrator after the expiry of the period stipulated for filing and service of the statement of claim and supporting documents are, accordingly, invalid, null and void.”

13. No appeal was preferred against this Judgment.

14. Subsequently, on 23rd January, 2013, the 4th Respondent, relying on the letter by the arbitrator dated 18th June 2012 and invoking the provisions of Section 16 of the Arbitration Act, wrote to the Chairperson of the Architectural Association of Kenya, seeking a substitute arbitrator. Being aware of this request, the Petitioner also wrote to the Chairperson informing him of the Judgment dated 21st March, 2012. The Chairperson aforesaid, notwithstanding the Petitioner’s objection, proceeded to appoint the 3rd Respondent as the sole arbitrator in a letter dated 14th February 2013. The Petitioner alleges that he was not made aware of this appointment until 6th March, 2013.

15. On 13th May 2013, the Petitioner, dissatisfied with the appointment aforesaid filed an application in High Court Civil Suit No. 571 of 2011 (O.S) under a certificate of urgency, seeking to injunct the 3rd and 4th Respondents from proceeding with the arbitration. Havelock J (as he then was) certified the matter as urgent and directed that the application be heard inter partes on 16th May 2013. No conservatory orders were issued at that point. The hearing of the application was later adjourned to 14th June 2013, and further to 24th October 2013.

16. Despite the pending application, the arbitration proceedings commenced with the sole arbitrator issuing directions to the parties for a number of mentions before him. Being apprehensive by the actions of the arbitrator, the Petitioner filed another application dated 29th July 2013 seeking a priority date for the hearing and determination of its application dated 13th May 2013. The application was certified urgent but could not be heard earlier than 24th October 2013. In the meantime, the arbitrator set the hearing dates for the arbitration as 26th and 27th November 2013.

17. The Petitioner then filed another application dated 13th November 2013 seeking a priority date for the hearing of its application dated 13th May 2013. On 8th April 2014, Gikonyo J, the 1st Respondent herein, issued a ruling whereby he determined that the arbitration proceedings before the previous arbitrator were distinct from those pending before the later appointed arbitrator, and that therefore, the arbitration could proceed to its conclusive end.

18. On 13th June, 2014, the Petitioner filed an application for review of the Judgment by Gikonyo J. The Petitioner contemporaneously filed a motion before the arbitrator seeking to stay the proceedings and/or an extension of the time to file its Statement of Defence out of time.

19. Kariuki J, the 2nd Respondent herein, presiding over the review application by the Petitioner determined inter alia, that there were no substantial grounds to allow a review and dismissed the application. The arbitrator in the meantime proceeded with the arbitral proceedings, rendering a final arbitral award on 17th December 2014, which award was adopted by the Court on 8th April 2016.

(b) Civil Suit No. 371 of 2016 (earlier Constitutional Petition No. 377 of 2016) 20. Being aggrieved by the decisions of the 1st and 2nd Respondents, the Petitioner filed a Petition at the Constitutional and Human Rights Division of the High Court at Nairobi in Petition No. 377 of 2016. The Petition was mentioned before Onguto, J on 9th September 2016 and directions were issued that the matter be moved to the Commercial and Admiralty Division of the High Court. The matter was thereafter renamed and renumbered Civil Suit No. 371 of 2016.

21. The matter was heard by Ochieng J, who in determining the issues raised in the Preliminary Objection filed by the 1st and 2nd Respondents on the issue of judicial immunity of Judges and judicial officers, held that the Court lacked the requisite jurisdiction to hear and determine the matter as it sought to have him enquire into decisions of or otherwise supervise the decisions of Judges of equal status and jurisdiction. He therefore upheld the Preliminary Objection and dismissed the Petition.

(ii) At the Court of Appeal 22. Being aggrieved by the decision of the Court in Civil Suit No. 577 of 2011 (O.S), the Petitioner filed a Notice of Appeal at the Court of Appeal on 9th April 2014, but did not pursue the appeal in Civil Appeal No. Nai 127 of 2014 despite being issued with a hearing notice by the appellate Court.

23. Also being aggrieved by the decision of Ochieng J in Civil Suit No. 371 of 2016, the Petitioner moved to file an appeal from the Judgment in Civil Appeal No. 239 of 2017. The Petitioner, in that appeal, contended that the 1st and 2nd Respondents had, in rendering their decisions dated 18th March 2014, 8th April 2014 and 8th April 2016, acted in bad faith and breached its rights to fair trial in its dispute with the 4th Respondent.

24. In the memorandum of appeal before the appellate Court, the Petitioner’s grounds of appeal were summarized as follows— that the learned Judge of the High Court (Ochieng J) erred in law and in fact, by;a)Misinterpreting and misapplying the Constitution in relation to his jurisdiction, the Petition before him and the Preliminary Objection;b)Failing to uphold that the rights and freedoms in the Bill of Rights can only be subject to limitations contemplated in the Constitution;c)Impairing the supremacy of and failing to defend and uphold the Constitution in letter and spirit over other law;d)Limiting and impairing the nature and scope of his jurisdiction to entertain the Petition;e)Determining that judicial immunity is absolute even when Judges act dishonestly; andf)Awarding costs to the Respondents and Interested Parties.

25. In rendering their Judgment on the appeal, the Court of Appeal held inter alia, that the contentious issue emerging succinctly out of the appeal was that of judicial immunity of Judges and judicial officers in the exercise of their mandate as Judges and judicial officers as well as the supervisory role of the Courts in relation to Judges and judicial officers of concurrent jurisdiction.

26. In the lead Judgment, Kiage JA held that there was absolutely no doubt that the superior Court Judge had no jurisdiction to enquire into or review the propriety of the decisions of Judges who were of concurrent jurisdiction as himself, and that therefore, he did not possess supervisory jurisdiction over the 1st and 2nd Respondents under Article 165(6) of the Constitution.

27. On the issue of judicial immunity, the learned Judge held that under Article 160(5) of the Constitution, Judges and judicial officers are immunized from any suits arising from their performance or decisions made in good faith and within the law. In so doing, he went further to pronounce thus:“I think that even though Judges are fallible human beings like everybody else, a mechanism does exist in our laws for correcting whatever errors they may commit in the discharge of their juridical functions. Aggrieved parties are at liberty to appeal as a matter of course and that appellate system suffices to deal with ordinary errors of law and fact so that at the end of the day justice is served. I also harbor no doubts that where a Judge’s conduct consists of egregious illegalities, violation of the judicial oath or outright illegalities and criminality, a mechanism for removal does exist and can be triggered in the appropriate cases. I am satisfied that those mechanisms suffice to guard the integrity of the judicial process and to protect the rule of law and the rights of the litigants. They ensure that judicial immunity, which is laudable and necessary for the protection of judicial independence does not morph into judicial impunity or some form of Frankenstein tyranny against the law and the people.”

28. Both Waki and M’Inoti, JJA concurred with the Judgment of Kiage, JA and unanimously dismissed the appeal. Aggrieved by that decision, the Petitioner proffered the current appeal to this Court.

(iii) At the Supreme Court 29. In presenting its Petition before this Court and invoking the provisions of Article 163(4)(a) of the Constitution, the Petitioner is seeking to set aside the decision of the appellate Court and the declarations made therein as regards the provisions of Articles 160(5) and 165(6) of the Constitution. The Petitioner’s grounds of appeal are as set out in paras. 119 – 123 thereof, are inter alia that;a)The learned Judges of the Court of Appeal erred, misapprehended and gravely misconstrued the Constitution on independence of the Judiciary in their interpretation and application of Article 160(5) of the Constitution to the effect and import that the said Article 160(5) grants absolute immunity to members of the Judiciary generally;b)The learned Judges of the Court of Appeal erred, misapprehended and gravely misconstrued the Constitution on independence of the Judiciary in their interpretation and application of Article 160(5) of the Constitution as asserting and granting an absolute immunity from personal liability to members of the Judiciary even where they acted in bad faith or omitted to act in good faith, acted unlawfully or omitted to act lawfully in the exercise or performance of a judicial function vis-à-vis the application of the Bill of Rights as set out in Articles 20(1), 20(2), 20(3) & 20(4) of the Constitution and the pursuit of the aspirations to national values and principles of governance set out in Article 10 of the Constitution;c)The learned Judges of the Court of Appeal erred, misapprehended and gravely misconstrued and misapplied the Constitution in their interpretation and application of Articles 160(5) and 165(6) of the Constitution to the circumstances of the case and failed to observe the unequivocal edicts of the Constitution at Articles 10, 20(1), 20(2), 20(3), 20(4) and 259(1) as pertains to the role, place and exercise of judicial authority and its implications thereof on the enforcement of fundamental rights and freedoms in light of Article 165(3) as read with Article 23(1) of the Constitution;d)The learned Judges of the Court of Appeal erred in both law and fact, misapprehended and gravely misconstrued and misapplied the applicable law being the Arbitration Act and Article 165(3)(e) of the Constitution when per Kiage JA at page 16, they found that“being of that persuasion, I cannot accept, less still lend approval to the appellant’s ill-advised path of dragging the Judges into Court by way of litigation against them in their personal capacities for their rulings delivered in the course and in the context of their lawful discharge of judicial functions. The alleged particulars of ill will and illegality were not supplied and would have been of no moment as the objections raised are bound to succeed.”;ande)The learned Judges of the Court of Appeal in arriving at their decision, took into account matters which they ought not to have, and failed to take into account matters which they should have.

D. Parties’ Submissions (i) The Petitioner’s Submissions 30. The Petitioner reiterated seriatim the averments and grounds adduced in support of its Petition in submissions dated 13th August 2019 and filed on 14th August 2019. In further extrapolation of grounds (a) and (b) thereof, the Petitioner contends that the appellate Court interpreted and applied Article 160(5) narrowly and restrictively without reference to the guiding principles set out in Articles 10, 20(1), 20(2), 20(3), 20(4) and 259(1) of the Constitution. It further argues that the learned Judges of the appellate Court failed to appreciate that they were bound by the Constitution to give effect and meaning to the Bill of Rights by elevating and setting apart members of the Judiciary from submission to the Constitution.

31. The Petitioner, in addition, submits that the Judges of the appellate Court failed to apply the stated precepts outlined in Articles 20(1), 20(2), 20(3) & 20(3) of the Constitution with regard to the denial, violation, contravention and infringement of the Petitioner’s fundamental rights and freedoms through the actions of the 1st and 2nd Respondents.

32. The Petitioner also submits that the appellate Court as well as the High Court had made a curious finding that the Petitioner had not particularized the elements of bad faith or ill will in the impugned decisions by the 1st and 2nd Respondents and instead contends that the willful and persistent disregard by the Respondents of the conclusive determination by Odunga J is definitive and a substantial demonstration of the blatant ill will and bad faith contemplated in the Petition.

33. The Petitioner furthermore contends that contrary to the assertion made in the Judgment of the appellate Court, absoluteness of judicial immunity is not settled law, and that different superior Courts have given different interpretations to the provisions of Article 160(5) of the Constitution. In this context, the Petitioner has cited the cases of Martin Nyaga Wambora & 3 Others v Speaker of the Senate & 6 Others [2014] eKLR, Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & 5 Others [2016] eKLR in addressing this point.

34. The Petitioner went on to argue that the tenets of good faith as interpreted and applied by the superior Courts (citing Malike Co. Ltd v Attorney General [2000] eKLR and Douglas Kipchumba Rutto v Kenya Anti-Corruption Commission & 8 Others [2013] eKLR) have formed the basis from which a challenge to the judicial immunity of a judicial officer could emanate and is therefore an integral element in the present matter where it is contended that the 1st and 2nd Respondents failed to act in good faith in the exercise of their judicial functions as is the expectation of Article 259(1) of the Constitution on Constitutional interpretation.

35. With regard to matters appurtenant to the provisions of Articles 1(1), 1(3)(c), 159(1), 159(2), 160(1), 161 and 260 of the Constitution, the Petitioner argues that independence of the Judiciary is subservient to the provisions of the Constitution and that any judicial officer who exercises judicial authority in contravention or in violation of the Constitution and the law and without good faith or abiding and adhering to the law, acts unlawfully and unconstitutionally. It thus argues in that regard that no arm of Government is above the law and relying, in that context, on Justus Kariuki Mate & Another v Martin Nyaga Wambora & Another [2017] eKLR. Further that, members of the Judiciary are not, and should not, be elevated to be above the purpose and intent of the Constitution.

36. The Petitioner concludes its submission by arguing that the appellate Court considered issues that it ought not to have considered, and failed to consider those that it ought to have in arriving at its determination. That the appellate Court Judges in that regard only considered the status of the 1st and 2nd Respondent as Superior Court Judges above all else, and therefore failing in their interpretation of Article 160(5) of the Constitution by declaring absolute immunity on the said judicial officers despite their alleged bad conduct.

(ii) 1st and 2nd Respondents’ Submissions 37. In their submissions dated 5th September 2019 and filed on 9th September 2019, the 1st and 2nd Respondents submit that the appellate Court properly interpreted and determined that the Petitioner’s appeal was devoid of merit, and correctly dismissed the same as it was in violation of Articles 160(5) and 165(6) of the Constitution.

38. They also submit that Article 160(5) as read together with Section 6 of the Judicature Act provide that judicial officers enjoy judicial immunity in the exercise of their judicial functions executed lawfully and in good faith, and that judicial immunity as a legal principle, is an important tenet in judicial independence. In that regard, they rely on Maina Gitonga v Catherine Nyawira & Another [2015] eKLR, Moses Wamalwa Mukamari v John Makali & 3 Others [2012] eKLR, G.B.M Kariuki v Hon. Fred Kwasi Apaloo [1994] eKLR and George Ngaya v Judicial Service Commission & 3 Others [2015] eKLR.

39. On the issue of supervisory powers of the High Court, the 1st and 2nd Respondents submit that there are pending execution proceedings in Civil Suit No. 571 of 2011 (O.S) and that by filing Civil Suit No. 371 of 2016, the Petitioner had sought to invoke the High Court’s supervisory powers under Article 165(6) of the Constitution over a court of concurrent jurisdiction and equal status which is a fundamental error in law. In this context, the 1st and 2nd Respondent rely on the cases of Civicon Ltd v Kenya Revenue Authority & Another [2014] eKLR, Peter Ng’ang’a Muiruri v Credit Bank Ltd & 2 Others [2008] eKLR and Kombo v Attorney General [1995-98] 1 EA 168 where it was held that a Superior Court cannot override the decisions of a court with concurrent jurisdiction.

(iii) 3rd Respondent’s Submissions 40. On his part, the 3rd Respondent in his submissions dated 22nd October 2019 and filed on 23rd October 2019, contends that Article 160(5) clothes judicial officers with absolute immunity in the exercise of their judicial functions, and is intended to safeguard such judicial officers from civil or criminal proceedings while performing their judicial functions within the law. In relying on the case of Bradley v Fisher 80 U.S (13 Wall.) 335 20 L. Ed 646 (1871), he argues that the principle of judicial immunity exempts Judges from liability in civil action for acts done by them in the exercise of their judicial functions and is an internationally accepted norm and principle recognized in Article 16 of the United Nations Basic Principles on the Independence of the Judiciary.

41. He further contends that the interpretation of Constitutional provisions, unlike statutory ones, should be holistic (referring to the decision in, In the Matter of Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference No. 1 of 2012; [2014] eKLR) and as contemplated in Article 259(1) of the Constitution, and must also be read together with the principles and tenets of independence of the Judiciary (referring to the decision of A.O.O & 6 Others v Attorney General & Another [2017] eKLR).

42. The 3rd Respondent concludes his submissions by arguing that the law provides adequate mechanisms and frameworks where judicial errors and mistakes may be rectified and resolved, including judicial review and appeals to appellate Courts. He also submits that disciplinary mechanisms are also available for aggrieved litigants through Article 168 of the Constitution, as read together with Article 172 thereof as well as the Judicial Service Act in situations where judicial officers act outside the law.

(iv) 4th Respondent’s Submissions 43. In its submissions, the 4th Respondent submits that the instant Petition contravenes Article 165(6) of the Constitution by seeking to invoke the exercise of supervisory jurisdiction of the High Court over a court of equal status or/and of concurrent jurisdiction, and that the issues raised in the Petition are res judicata as they were finally and conclusively determined by the 1st and 2nd Respondents by dint of Sections 14(6), 17((7), 32A and 35 of the Arbitration Act.

44. The 4th Respondent further goes on to submit that the Petition offends known and lawful mechanisms of dispute resolution especially under the Arbitration Act and as settled in Francis Gitau Parsimei & 2 Others v National Alliance Party & 4 Others [2012] eKLR.

45. On the issue of judicial immunity vis-à-vis judicial independence and accountability, the 4th Respondent submits that in so far as an independent Judiciary is indispensable to the administration of justice and founded on public interest considerations, it should also aspire to certain standards of competence, integrity, accountability and transparency. It was submitted in that regard that judicial immunity is a guarantee that judicial officers would be accorded protection from liability in the exercise of their judicial mandate (relying on Pulliman v Allen 104 S. Ct, 1970) and that if judicial matters were drawn into question by frivolous and vexatious actions, there would never be an end to litigation causes (referring to Floyd v Baker 12 Co. Rep, 23, 24, 77 Eng. Rep. 1305 (Star Chamber 1607)) (Floyd).

46. The 4th Respondent furthermore submits that judicial immunity is absolute for Judges performing judicial acts (quoting Stump v Sparkman 435 U.S 349, 98 S. Ct 1099, 55 L. Ed. 2d 331 (1978)) (Stump) in their judicial capacity and that a Judge or judicial officer would still be immune from liability if he acted or carried out a judicial act within, or in excess of, his jurisdiction, but not in the clear absence of jurisdiction.

47. In its submissions, the 4th Respondent has also stated that the Petitioner did not exhaust the mechanisms provided under the Constitution or statutory provisions, and that where there were clear procedures for redress, then that procedure should be strictly followed. Reliance in that regard was placed on Speaker of the National Assembly v James Njenga Karume C.A Civil Appeal No. 92 of 1992.

48. On the supervisory role of the High Court under Article 165(6) of the Constitution, the 4th Respondent submits that this jurisdiction cannot be exercised over other superior courts, and that the claim expressed by the Petitioner that the 1st and 2nd Respondents were precluded from determining the matter as it was res judicata is unfounded as the matter before them was predicated on different facts, and were nonetheless, not bound by the holding of a court of equal status (quoting Kanorero River Farm Ltd & 3 Others v National Bank of Kenya Ltd [2002] 2 eKLR 207).

E. Analysis and Determination 49. Having carefully considered the pleadings filed by the parties in this appeal, we find that the main issue arising for determination by this Court revolves around judicial immunity of Judges and judicial officers in the exercise of their judicial functions as the issue of the High Court supervising other Courts of concurrent jurisdiction is no longer contested. We shall in this Judgment use the terms “Judges” and “judicial officers” interchangeably.

50. The 1st and 2nd Respondents in this Petition are serving Judges of the High Court of Kenya. The Petitioner’s main plea against them in this matter is for a declaration that“members of the Judiciary do not enjoy absolute immunity under Article 160(5) of the Constitution.”In other words, the Petitioner urges in that regard that judicial immunity is not absolute and does not apply to judicial officers who act without jurisdiction, or in bad faith and in contravention of the law and rules of natural justice. If this Court grants that plea, the Petitioner’s further plea is for this Court to go ahead and issue a further declaration that“the decisions made by the 1st and 2nd Respondents [in Nairobi High Court Civil Suit No. 571 of 2011 (O.S)] violated, denied, infringed upon or contravened the petitioner’s rights under Articles 27(1), 40 and 50(1) of the Constitution”and in effect reverse the decisions of the High Court and Court of Appeal thus holding that the 1st and 2nd Respondents liable to the Petitioner for damages.

51. All the Respondents are of a contrary opinion, urging that the absoluteness of judicial immunity is paramount, as it is an integral component to the tenets of an independent, transparent and accountable Judiciary as well as the administration of justice. They thus argue that judicial immunity is a guarantee that judicial officers are protected or deemed immune from liability in the discharge of their judicial mandate whether or not they act in excess of their jurisdiction.

52. With this rivalry, it is therefore imperative for this Court to evaluate the tenets of judicial immunity of judicial officers in the exercise of their Constitutional and statutory functions; the purpose or objective of judicial immunity; whether or not judicial immunity is absolute; and the recourse for a party aggrieved by an unlawful act or omission of a judicial officer.

(i) The Tenets of or What Judicial Immunity Entails 53. The concept of judicial immunity started as a common law principle which is debatably traced to Lord Coke’s decision in Floyd. In his Judgment in that case, Lord Coke stated that the principle was a public policy based on the need for protecting the independence of the courts and thus maintaining public confidence in the system of justice and the need for finality in litigation. In its decision in Randall v Bingham 74 US (7 Wall) 523 (1868) (Randall), the US Supreme Court adopted the principle of judicial immunity into the United States legal system.

54. In his Article “A Judge Can Do No Wrong: Immunity is Extended for Lack of Specific Jurisdiction – Stump v Sparkman DePaul Law Review Volume 27 Issue 4 1978”, Stephen Graig Voris, writing on the development of judicial immunity in the United States, observed that in its Judgment in the said case of Randall, the US Supreme Court;“qualified the doctrine [of judicial immunity] in dictum by stating that Judges of Courts of superior jurisdiction were not liable in civil actions ….”In its later decision in Stump, the US Supreme Court asserted that“The governing principle of law [on judicial immunity] is well established and is not questioned by the parties.”As such, it added,“Judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly."

55. Further, in Harlow v Fitzgerald 457 US 800 (1982) (Harlow), the United States Supreme Court qualified the principle and stated that immunity could be granted to government officials and specifically judicial officers only if;(1)an official believed in ‘good faith’ that his conduct was lawful and(2)that the conduct was objectively reasonable.The test in Harlow, in addition to the good faith test and lawfulness, was that of objective reasonableness, in that the conduct of the officials is evaluated to ascertain whether they acted reasonably under the circumstances thus warranting immunity. This objective reasonableness test was defined by the court to allow protection for judicial officials performing discretionary functions, so long as those functions did not violate clearly established Constitutional or statutory rights of which a reasonable person would have been aware of.

56. In our realm, Article 160(5) of the Constitution also entrenches the immunity of judicial officers who act in ‘good faith’. It reads;“A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.”

57. The immunity granted by this provision therefore encapsulates protection from legal proceedings founded on acts committed or omissions made by Judges in the lawful performance of their judicial functions.

(ii) The Objective of the Principle of Judicial Immunity 58. The concept of judicial immunity is not without foundation. Judicial immunity is an important tenet in the delivery of justice and the maintenance of the rule of law. For the proper administration of justice, it is a well-established public policy that Judges should freely express themselves in matters brought before them. A Judge, as well as other judicial officers, require to have confidence in carrying out their judicial functions without the fear that they shall be prosecuted or harassed for their acts or omissions. As the US Supreme Court reaffirmed in Stump it is“a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself."

59. The rationale for this judicial immunity is the preservation of independent decision-making capabilities of judicial officers; immunity for judicial acts is thus necessary so that judicial officers can make the sometimes controversial decisions that are their judicial obligation and mandate to make, independent of personal considerations, including fear of personal liability.

60. The concept is also an important aspect of judicial independence under the doctrine of the separation of powers. In Moses Wamalwa Mukamari v John Makali & Another (supra), the High Court thus underscored this point by stating thus:“The protection offered to judicial officers in Article 160(5) of the Constitution is inherent in the independence of the Judiciary as a state organ within the doctrine of separation of powers.”

61. It would, in our view, therefore be repugnant to the cause of justice if Judges would always act in fear of legal actions being brought against them for decisions they make in the course of discharging their mandate.

62. We must hasten to add at this point that the immunity granted by Article 160(5) of the Constitution is not necessarily for the benefit of the Judge or judicial officer concerned. It is for the public and in particular for litigants appearing before the Courts of law. As M’Inoti, JA stated in the decision giving rise to this appeal;“The immunity is not for the personal benefit of Judges; … it was never intended for the ego or personal interest of Judges. The true intention is protection of the administration of justice.”

63. Besides freedom of thought, expression and action, the other cardinal factor encapsulated in this immunity is finality. It would be a travesty of justice if disgruntled litigants are permitted to sue Judges who rule against them thus prolonging litigation unnecessarily and personalizing matters that Judges ought not to have personal interest in. In the words of Mativo J in Maina Gitonga v Catherine Nyawira Maina & Another (supra) if we allow court decisions to be“drawn into question by frivolous and vexatious actions, there will never be an end of causes, … controversies will be infinite.”The Court of Appeal said as much in its Judgment giving rise to this appeal: each losing litigant would sue a Judge even for mere ego and/or wounded pride.

64. The Petitioner has also accused the two Judges of impunity. To our minds, there is a clear distinction between judicial immunity and impunity, and it is important that judicial officers understand that they need not find themselves on the side of latter. Article 160(5) draws the line between immunity and impunity; the line crosses where acting lawfully and in good faith meets willful and negligent abandonment of the oath of office to uphold the integrity and independence of the Judiciary and to dispense justice without fear or favour. Article 160(5) is not blind to this inherent distorted character between judicial immunity and impunity, and thus provides a resonating standard for judicial officers to act according to the tenets enunciated under the Constitution; to ensure that there is rule of law, protection of fundamental rights and freedoms in the Bill of Rights and to do justice to all. The latter point speaks to the lawful action qualification as it does to the good faith expectation.

65. Judicial immunity, we reiterate, is meant to provide protection to judicial officers from third parties’ interference, influence or obstruction. Judicial immunity is also necessary to protect the reputation and perception of the Judiciary, to maintain the trust of the public and ensure transparency and accountability. A Judge acting in his official judicial capacity thus enjoys immunity from liability for judicial acts performed within the scope of his or her jurisdiction and in the manner explained above.

(iii) Whether or not Judicial Immunity is Absolute 66. Article 160(5) grants judicial officers immunity if they act in “good faith”. What therefore, is ‘good faith’? According to the Black’s Law Dictionary, Ninth Edition at pg. 713, ‘good faith’ is defined as;“A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligations, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage.”

67. The antithesis to acting in good faith would be to act in bad faith, with a willful intent to act dishonestly or unfaithfully in the performance of judicial acts. The Constitution does not define bad faith. In Public Protector v South African Reserve Bank [2019] ZACC 29 Mogoeng, CJ however defined bad faith as including malicious or“fraudulent, dishonest or perverse conduct … [as well as] gross illegality.”In other words, he added,“bad faith exists only when the office-bearer acted with the specific intent to deceive, harm or prejudice another person or by proof of serious or gross recklessness that reveals a breakdown of the orderly exercise of authority so fundamental that absence of good faith can be reasonably inferred and bad faith presumed.”

68. Besides acting in good faith, in Stump, the Court also enunciated a two-tiered approach to determining whether judicial immunity applied:(1)whether the acts were judicial acts and(2)whether the acts were acts performed by the Judge in his judicial capacity.The Court also determined that regardless of any alleged violation of due process, procedural errors do not deprive a Judge of immunity because due process necessarily attaches to any act performed in a judicial capacity.

69. It was indeed observed in Bradley that there was a distinction between excess jurisdiction and clear and deliberate seizure of absent jurisdiction; the former connoting that the judicial officer did not apprehend his jurisdictional limits, and the latter elaborating the deliberate corrupt or malicious seizure of jurisdiction by judicial officers, with obvious consequences on the latter. Justice Field in that context held that;“A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter, any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the Judge, no excuse is permissible. But where jurisdiction over the subject-matter is invested by law in the Judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his Judgments may depend.”

70. With this principle in mind, save in a clear case of deliberate and unlawful usurpation or seizure of jurisdiction where none exists or some other glaring impropriety, as Lord Denning observed in Sirros v Moore & Others [1974] 3 All ER 776, if a Judge acts in“the honest belief that his act was within his jurisdiction”,he is still protected. While acting in that belief, Buckley LJ added that the protection continues“notwithstanding any error in his reason for doing the act or his method of doing it.”As such, if a Judge acting in his capacity as a Judge, acts in good faith in the lawful performance of his duties, he has absolute immunity even when he acts in excess of his jurisdiction. We therefore endorse Mativo J’s statement in Maina Gitonga v Catherine Nyawira Maina & Another (supra) that:“It is undoubted that under the established doctrine of judicial immunity, a judicial officer is absolutely immune from criminal or civil suit arising from acts taken within or even in excess of his jurisdiction.

71. In his rendition of that absoluteness in the appellate Court Judgment, Kiage JA was even more emphatic;“I have no difficulty whatsoever in holding that judicial officers are under Article 160(5) immunized from any action or suit on account of their performance of a judicial function. I do not apprehend that the words ‘good faith’ and ‘lawful’ in sub-Article are a qualification or limitation of the immunity for the rather obvious reason that so long as a Judge is acting in a judicial capacity and exercising his usual jurisdiction, there is the commonsensical presumption that he is acting lawfully and in good faith. There exists an implicit covenant of good faith binding Judges. This has to be a priori position for, to hold otherwise would lead to the absurd position of good faith bases of Judges’ actions being debatable points and open to intolerable deluge of litigation, each unhappy litigant suing Judges left, right and center as wounded pride dictates.”

72. For avoidance of doubt, the protection or immunity of a Judge also goes into administrative acts. As in Stump, in G.B.M Kariuki v Hon. Fred Kwasi Apaloo (supra), it was held that;“The respondent, a Judge, holding [the] administrative office of Chief Justice while executing his judicial duties in Court or in execution of his administrative duties within the jurisdiction, enjoys absolute privilege from being sued civilly for his expressions either in writing or verbally. This is so under the common law and under the provisions of Section 6 of the Judicature Act, Cap 8. ”

73. We agree and would only conclude by stating that the immunity accorded to a Judge is absolute in the meaning attributed to the expression by Article 160(5) of the Constitution and as analysed in this Judgment. But that is not the end of the matter. We must still address the remedy available to a party alleging misconduct on the part of a judicial officer in decision making.

(iv) Recourse for a party aggrieved by an Unlawful Act or Omission of a Judicial Officer 74. Suppose there are allegations that a Judge has acted in bad faith or unlawfully and thus imputations of judicial impunity are made? Is such a Judge to be left scot free? Is a party injured by the “fraudulent, dishonest or perverse” conduct of a Judge without remedy?

75. Fraud is a serious quasi-criminal imputation. A Judge whose conduct is “fraudulent, dishonest or perverse”, is a disgrace to the cause of justice. A Judge’s act of bad faith undermines his or her integrity and fidelity to the judicial oath of office. Under our law, the remedy for a litigant making allegations of fraud, dishonesty and/or perversity lies, not in a suit against such a Judge but in a petition to the Judicial Service Commission for removal from office under Article 168 of the Constitution. That Article has an elaborate procedure which entitles both a complaining party and the subject Judge the opportunity, both at the Commission and in a Tribunal set up under Article 168(5) thereof, to a fair hearing. A suit directly against a Judge for alleged misconduct or misbehavior was never, in our view, an expectation of the drafters of the Constitution.

76. This view was indeed succinctly captured in the appeal decision by Kiage JA when he stated, and we agree that;“I think that even though Judges are fallible human beings like everybody else, a mechanism does exist in our laws for correcting whatever errors they may commit in the discharge of their juridical functions. Aggrieved parties are at liberty to appeal as a matter of course and that appellate system suffices to deal with ordinary errors of law and fact so that in the end, justice is served. I also harbor no doubts that where a Judge’s conduct consists in egregious illegalities, violation of the judicial oath or outright illegalities and criminality, a mechanism for removal does exist and can be triggered in appropriate cases. I am satisfied that those mechanisms suffice to guard the integrity of the judicial process and to protect the rule of law and the rights of litigants. They ensure that judicial immunity, which is laudable and necessary for the protection of judicial independence does not morph into judicial impunity or some form of Frankenstein tyranny against the law and the people.”

77. A Judge, in our view, thus remains unquestionably immune as long as he does not take actions that intentionally and plainly prevent litigants from enjoying their Constitutional and statutory rights. The duty imposed on a Judge, then, is only to recognize that his own decisions may sometimes be in error and to ensure that orders affecting important Constitutional rights can be reviewed or appealed in another Court. But the conduct of a Judge who acts mala fides or unlawfully may thus trigger proceedings before the Judicial Service Commission and may ultimately lead to his removal thus the need for extreme care in the enjoyment of immunity.

(v) The Petitioner’s Appeal in context 78. Having so held, was the present Petitioner denied an opportunity by the 1st and 2nd Respondents to pursue an appellate remedy to the decisions made by them, or could it be deduced from the pleadings that there was violation and infringement of the Petitioner’s Constitutional right to be fairly heard under Article 50 or through an alternative resolution mechanism? If the response to any of these questions is in the affirmative, would it also be considered that the 1st and 2nd Respondents acted in deliberate and unlawful excess of their jurisdiction, and could not therefore be afforded judicial immunity as prominently propounded in Bradley and Stump?

79. From the facts before us, it cannot be said that the Petitioner was denied an opportunity to seek appellate or alternative relief from what it considered an affront to its Constitutional right to fair hearing under Article 50. Other than legal proceedings against the two Judges, various avenues were available to it, and it was up to it to decide which avenue best suited its interests.

80. We note in the above regard that, the Petitioner proffered an appeal to the Court of Appeal in Civil Appeal No. Nai 127 of 2014. For reasons unknown or unexplained, it chose not to pursue that appeal but instead filed another cause in Civil Suit No. 371 of 2016 (formerly Petition No. 377 of 2016). This is the matter that led to the instant Petition. The Petitioner thus knew and initially chose the appeal mechanism as a means of seeking relief but later abandoned it. It cannot therefore be heard to claim that it was denied an opportunity to be heard and that there was a violation of its Constitutional rights under Article 50.

81. As stated above, the Petitioner’s claim against the two Judges is simply that in dismissing its applications, the two Judges acted in bad faith and without jurisdiction thus violating its rights to a fair trial in its dispute with the 4th Respondent. No evidence beyond that mere statement was tendered in proof thereof. That is not the act of a serious litigant or complainant even if the above-named Judges had no judicial immunity.

82. Suing a Judge or judicial officer for rendering an unfavourable decision rather than appeal or seek a review, was in our opinion, a misconception and a step in the wrong direction on the part of the Petitioner. As a court, we are cognizant of the fact that at times, litigants may feel aggrieved by some of the decisions that Judges and judicial officers make. But this is not in any way an exoneration of the Petitioner in its actions. To seek relief by apportioning an unwarranted attack on the 1st and 2nd Respondents, who were lawfully exercising their judicial function, was not only tantamount to harassment and intimidation of the judicial officers, but also clearly a red herring that the Petitioner conceived to deny or delay the 4th Respondent’s right to a remedy under their contract. This Apex Court will not countenance such action.

83. The Petitioner has also described the 1st and 2nd Respondents’ dismissal of its applications as acts of impunity. As was observed in Bradley, to amount to impunity, a Judge’s act must be a clear and deliberate seizure of absent jurisdiction”. If proved, such acts would not only be an attack on the integrity and conduct of the 1st and 2nd Respondents, but also a reprehensible affront to the cause of justice and the independence of the Judiciary. Such acts are tantamount to tarnishing the image of the Judiciary, violating its integrity and putting all judicial officers into disrepute. We reiterate that a mere statement that the 1st and 2nd Respondents acted with impunity does not suffice. As we have pointed out, the Petitioner ignored the express route of a petition under Article 168 of the Constitution if he thought the Judges misconducted themselves and instead chose the unacceptable route of a suit against the Judges. We therefore reiterate that immunity of a Judge can only be stripped in our realm, by proceedings through the Judicial Service Commission and not by a civil suit as argued by the Petitioner.

84. Without belabouring the point, save for an obvious displeasure at their decisions, the Petitioner has not brought forth any iota let alone credible evidence that the 1st and 2nd Respondents acted in bad faith or against the law. We therefore see no reason to uphold its complaint in that regard.

F. Determination 85. Having held as above, it is our finding that the 1st and 2nd Respondents as Judges of the High Court, in our view, acted in accordance to and within their jurisdictional limits under Article 165. They may have rendered decisions which were unpalatable to the Petitioner. This too was within their judicial function. That the Petitioner chose to challenge those decisions through a rather unorthodox approach cannot be lauded but ought instead to be condemned.

86. It is for the above reasons that we dismiss this Petition. What of costs? The Petitioner was represented throughout the judicial proceedings. It certainly ought to have been properly guided on the risks it was taking when it launched itself upon a most unorthodox path. It must now reap the consequences of that risky venture. It must be ordered to pay costs to all the Respondents both in the Courts below and in this Court.

G. Disposition 87. For the above reasons, we hereby make the following final orders; a)The Petition is hereby dismissed; and

b)The Petitioner shall bear the costs of all the Respondents, both in this Court and the Superior Courts below.

88. It is so ordered.

DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2020. .........................D. K. MARAGACHIEF JUSTICE & PRESIDENT OF THE SUPREME COURT.........................P. M. MWILUDEPUTY CHIEF JUSTICE & VICEPRESIDENT OF THE SUPREME COURT.........................M. K. IBRAHIMJUSTICE OF THE SUPREME COURT.........................S. C. WANJALAJUSTICE OF THE SUPREME COURT.........................I. LENAOLAJUSTICE OF THE SUPREME COURTI certify that this is a true copy of the originalREGISTRARSUPREME COURT OF KENYA