https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10952

Mutyanziu v Honourable Senior Principal Magistrate, Makindu Law Courts & 3 others (Constitutional Petition E008 of 2024) [2026] KEHC 10952 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10952 (KLR) Republic of Kenya In the High Court at Makueni Constitutional Petition E008 of 2024 TM Matheka, J July 17, 2026 IN THE MATTER OF AN APPLICATION FOR ORDERS OF JUDICIAL REVIEW -AND- IN THE MATTER OF ARTICLE 40, 47, 48, 50 & 165 OF THE CONSTITUTION OF KENYA -AND- IN THE MATTER OF ORDER 53, RULE.1 (1), (2), (3) & (4) OF THE CIVIL PROCEDURE RULES 2010 -AND- IN THE MATTER OF SECTION 4, 5 & 11 OF THE FAIR ADMINISTRATIVE ACTIONS ACT, No. 4 OF 2015 -AND- IN THE MATTER OF SECTION 3(2) AND 29 OF THE LAW OF SUCCESSION ACT CAP 160 AND RULE 21 & 22 OF THE PROBATE AND ADMINISTRATIVE RULES -AND- IN THE MATTER OF MAKINDU SPM CITATION CAUSE NO. 96 OF 2019: JULIUS MUSYOKA KIMUNDUU -vs- LYDIA KAMII & 15 OTHERS Between Churchill Kailiti Mutyanziu Applicant and The Honourable Senior Principal Magistrate, Makindu Law Courts 1st Respondent Julius Musyoka Kimunduu 2nd Respondent The Honourable Attorney General 3rd Respondent and Inspector General, Kenya Police Interested Party Judgment Introduction 1.The Petition dated 16/09/2024 seeks the following orders;A.Declarations be issued that:i.The decisions and actions of the 1st Respondent in issuing the Citation orders were guided by a void Agreement for Sale and as such the orders were unlawful, capricious and in breach of inter alia article 47 of the Constitution and Sections 4,5 and 6 of the Fair Administrative Action Act and threatened to disinherit the Petitioner and his family.ii.The Petitioner was wrongfully arrested and detained in relation to Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others.iii.The Respondents are liable to pay all incurred medical bills to the tune of Kshs. 236,000/= plus interest at court rate and with consideration to inflation levels.iv.The 1st Respondent is in breach of Articles 10(2) and 73(a) and (b) of the Constitution and Section 7 of the Leadership and Integrity Act by failing to serve the people in an equitable, inclusive, accountable and transparent manner and failing to uphold the rule of law which amounts to abuse of power and disregard for property rights and the right to fair administrative action.v.It is unreasonable to issue arrest warrants and committal to civil jail orders in Citation proceedings.B.An order for certiorari to remove into the High Court and quash proceedings and orders issued by the 1st Respondent on 11/09/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting the Citor’s prayers in the Citation dated 09/10/ 2019, without giving lawful and due consideration of evidence adduced by the citees, in contravention of the legal threshold of Fair Administrative Action expected of the Honourable Court.C.An order for certiorari to remove into the High Court and quash proceedings and orders issued by the Makindu Senior Resident Magistrate (Hon. B Ireri) on 14/08/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019 ;Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting injunctive orders to the Applicant against the Respondents restraining them from accessing their own property as owners and dependants of the Deceased per the meaning of Section 29 of the Law of Succession Act.D.An order for certiorari to remove into the High Court and quash proceedings and orders issued by the Makindu Senior Resident Magistrate (Hon. B Ireri) on 14/08/2023, in the matter of Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others having acted ultra vires in granting injunctive orders to the Applicant against the Respondents restraining them from accessing Plot No. 344 Muthingini Settlement Scheme, in contravention of the legal threshold of Fair Administrative Action expected of the Honourable Court.E.An Order Of Prohibition prohibiting continuation of proceedings and issuance of orders by the 1st Respondent and the execution of orders by the 2nd Respondent, and the 1st and 2nd Interested Parties from executing the orders issued erroneously by the 1st Respondent in the aforementioned case, Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others.F.An order of mandamus compelling the Respondents to transfer the aforementioned case, Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others and Makindu Succession Cause No. E001 of 2024 - In the Estate of the late James Mutyanziu Mung’atu alias James Mutyanziu Mung’ati alias Mutyanziu Mung’atu to this Court or any subordinate court at the Makueni Law Courts for trial and final disposal in the interest of justice.G.Special damages (with interest at court rates of 14% per annum from the date of judgment until payment in full) for:i.Admission fees – Kshs. 45,000/=ii.Bed charges – Kshs. 49,000/=iii.Pharmacy services – Kshs 106,230/=iv.Laboratory Services – Kshs 30,750/=H.Exemplary and punitive damages for unfair, unlawful and wrongful detention of the Petitioner with interest at court rates of 14% per annum from the date of judgment until payment in full.I.General Damages for mental pain and anguish owing to the unlawful detention.J.Any Prerogative orders necessary in relation to settlement of prayers G-I by a public institution.K.Interest at court rates of 14% per annum from the date of filing the Petition until payment in full.L.Costs of the suit on a full indemnity basis with interest at court rates of 14% per annum from the date of filing the Petition until payment in full.M.Any other relief that the Honourable Court shall deem just. 2.The facts in support of the Petition were stated to be; That, at all material times the 1st Respondent was the judicial officer allocated Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others and under whose ambit the role of hearing and determining the said case fell. That, the 1st Interested Party has orders from the 1st Respondent allowing his representatives and/or agents to assist in the execution of orders explicit and implied stemming from the proceedings in Makindu Succession (Citation) Cause No. 96 of 2019. 3.That, the Petitioner is a primary dependant and beneficiary of the Estate of the late Mr. James Mutyanziu Mung’atu (hereinafter “the Estate”) under the meaning of Section 29 of the Law of Succession Act and by extension Article 40 of the Constitution of Kenya by virtue of being his son. That, the Petitioner together with 15 other dependants of the Estate claim an interest in Plot No. 344 Muthingini Settlement Scheme measuring 3.95HA (suit property) by virtue of being a widow and children to the late Mr. James Mutyanziu Mung’atu (the deceased). 4.That, on 09/10/2019 the 2nd Respondent JULIUS MUSYOKA KIMUNDUU filed Makindu Succession (Citation) Cause No. 96 of 2019 claiming ownership of the suit property and thus sought the 1st Respondent’s orders for Citation of the Petitioner and 15 other dependants of the Estate. That, the deceased had already subdivided the suit property between the Petitioner and his brother Christopher Mutyanziu. That, vide the 1st Respondent’s Order issued on 11/09/ 2023, the 2nd Respondent’s prayers in the aforementioned Citation were granted. 5.That, the 1st Respondent granted the citation orders based on an irregular Agreement for Sale dated 02/11/ 2013 purported to have been entered into by the deceased and the 2nd Respondent. That, based on the citation orders issued, the 1st Respondent proceeded to issue Contempt of Court orders against the ex-parte Applicant and further committed him to civil jail over the festive season in December vide the order issued on 11/12/2023. That, prior to issuing the contempt orders, the 1st Respondent had issued a temporary injunctive order against the Petitioner and his co-citees vide an order issued on 14/08/2023 despite them being in occupation of the land which effectively served as an eviction order; a substantive prayer issued at the interim stage which is unprocedural and an ultra vires action. 6.That, the temporary injunctive order was nonetheless unlawful noting that it sort to bar the 16 dependants from accessing their father’s property based on an illegal and void contract. That, the 2nd Respondent relied on an Agreement dated 02/11/2013 to claim ownership of the suit property. That, prima facie examination of the Agreement shows that it is in contradiction to the laws governing contracts in Kenya, as it was, not executed or attested. That, no spousal consent was issued hence the construction of the same should have been found as void by the 1st Respondent. 7.That, the 2nd Respondent never presented to the 1st Respondent or the Citees proof of payment of the alleged purchase price of Kshs. 210,000/= or the balance of Kshs 90,000/=. That, the 2nd Respondent never made an attempt to claim ownership of the suit property while the deceased was alive, therefore, even if the impugned Agreement existed it is possible he never completed payment of the purchase price, thus, he breached it. 8.That, the 2nd Respondent is a long-term neighbor of the deceased and his actions in respect to the suit property amount to attempted encroachment and unjust enrichment at the expense if the dependants to the Estate. That, Based on the impugned proceedings, the 1st Respondent issued orders on 14/09/2023 directing the Citees to file succession proceedings within 60 days with a mention date set for 11/12/2023 for confirmation of the compliance. 9.That, the Order also allowed for the Citor to institute the proceedings in lieu of and despite that, the Court issued further punitive orders on 11/12/2023 committing all 16 citees to civil jail and an arrest warrant issued on 15/12/ 2023. That, on 28/12/2023, only the Petitioner was arrested and committed to civil jail vide the Committal orders issued by the 1st Respondent on the same date. 10.That, citation orders give clear cut remedies wherein if the Citees failed to heed the orders issued then the Citor was at liberty to institute succession proceedings by himself. That, the actions by the Respondents were targeted as the suit property lies where the Petitioner and his brother had been allocated by their father and as such sought to consciously disinherit them. 11.That, the 2nd Respondent stands to gain unjustly from a Deceased’s estate to the detriment of 16 living dependants and the Petitioner has no confidence he will receive a fair hearing and determination in Makindu Succession (Citation) Cause No. 96 of 2019 and Makindu Succession Cause No. E001 of 2024, both before the 1st Respondent and as such wishes to have the same transferred to Makueni Law Courts. 12.The nature of injury caused to the Petitioner was stated to be; That, the Petitioner was arrested and held at the Kenya Prison Service Makueni Remand Wote, following the committal orders, to great personal embarrassment as a man of great societal reputation and a grave cumulative violation of his human rights as a result by organs of the state. 13.That, whilst in Remand, the Petitioner contracted serious ailments occasioned by the unhygienic state and his old age which he is yet to recover from. That, as a result of the ailments, he has incurred heavy medical costs as he was admitted at Ngara Comprehensive Health Services Ltd on 15/01/ 2024 until 22/01/2024 wherein he was diagnosed with; Amoeblasis (gastro-intestinal disease), Pneumonia (respiratory disease) and Pityriasis vesicular (fungal skin disease). That, he incurred medical costs to the tune of Kshs. 236,000/= as follows;i.Admission fees – Kshs. 45,000/=ii.Bed charges – Kshs. 49,000/=iii.Pharmacy services – Kshs 106,230/=iv.Laboratory Services – Kshs 30,750/= 14.That, the Petitioner’s children; a Bio-Engineer intern in Mombasa and a student at the National Industrial Training Authority had to miss out on their academic activities owing to the arrest and detainment. 15.That, the Petitioner spent the December holidays alone at the Remand to great personal mental pain and anguish as well as that of the rest of his family. That, his family was in anguish over the looming threat of arrest as the arrest warrant was issued against the entire family. 16.The Constitutional provisions violated were stated to be;a.The 1st Respondent failed to ensure that he adhered to the set laws on contracts, land, citations et al and as such his actions failed to conform to Article 47 of the Constitution by granting orders that were not lawful, reasonable and in a procedurally fair manner.b.The 1st Respondent, through his orders, threatened to disinherit the legal dependants to the Estate of the late Mr. James Mutyanziu in violation of Section 29 (1) of the Law of Succession Act and Article 40 of the Constitution.c.The 2nd Respondent sought to legalize his acts of intermeddling by seeking impugned orders through the 1st Respondent in violation of Section 45 of the Law of Succession Act.d.The Respondents’ contravened Article 10 (2) of the Constitution by infringing on the national values and principles of governance of equity, social justice, good governance, transparency, accountability and sustainable development.e.The Respondents’ actions are oppressive, arbitrary and unconstitutional as the unlawful detention of the Petitioner has caused an impact to his physical health.f.The Respondents’ actions have unlawfully exposed the Petitioner to astronomical costs that he should not be liable to pay in hospital.g.Breaching the rules of natural justice by failing to accord the Petitioner a fair hearing.h.The 1st Respondent is in breach of Articles 10(2) and 73(a) and (b) of the Constitution by failing to serve the people in an equitable, inclusive, accountable and transparent manner which amounts to abuse of power through intimidation, disregard for property rights and the right to fair administrative action.i.Breach of the provisions of Article 232 of the Constitution by failing to adhere to the highest principles of public service. The Responses 17.The 1st Respondent, through the office of the Attorney General, filed the following grounds of opposition;a.That the Petitioner has failed to specifically demonstrate how their fundamental rights and freedoms have been violated by the Honourable Senior Principal Magistrate Court at Makindu based on an alleged violation of his right to fair administrative action, as espoused in the case of Anarita Karim Njeru -vs- R (1976-1980) KLR 1272 where the Court held that "... a petitioner ought to demonstrate in precision how the respondents' actions and conduct constitute a violation or infringement of their fundamental rights and freedoms."b.That the petition does not demonstrate by way of evidence any of the alleged violation of rights by the 1st Respondent.c.That Article 24 of the Constitution of Kenya permits the limitation of rights and fundamental freedom. The rights alleged to have been violated by the Petitioner do not fall under the category of non-derogable fundamental rights and freedoms as per Article 25.d.That the Petitioner failed to pursue appropriate remedies to address his grievances, including lodging an appeal or seeking a review of the Citation Order through a proper forum if he believed that the Order was guided by a void Agreement for Sale and as such was unlawful and capricious.e.That in Hadkinson v Hadkinson (1952) ER it was held that "where it is submitted that a court order can only be attacked by having the same set aside, it must be obeyed even where the person aggrieved by the order believes it to be irregular or void." Therefore, the Petitioner cannot claim the Citation Order was illegal in retrospect without having pursued appellate or review processes.f.That in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR it was stated that“...there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts."g.That Section 9 of the Fair Administrative Action Act provides that the High Court or a subordinate court under subsection (1) shall not review an administrative action or decision under this Act unless the mechanisms including internal mechanisms for appeal or review and all remedies available under any other written law are first exhausted.h.That in Maina Gitonga v Catherine Nyawira Maina & another [2015] eKLR it was expressed 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 actions taken within or even in excess of his jurisdiction. Judicial immunity is necessary for various policies..."Therefore, the Petitioner errs by claiming the 1st Respondent is liable to pay all incurred medical bills.i.That Article 160 of the Constitution of Kenya enshrines Judicial Independence and as such provides that 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.j.That the Petitioner cannot claim that the 1st Respondent acted ultra vires when he was rendering his judicial duty by issuing the Citation Orders.k.That in Econet Wireless Kenya Ltd v Minister for Information & Communications of Kenya & Another [2005] KEHC 1767 (KLR) it was held that“due to the gravity with which the law and the court is deemed, any contempt of court or allegations thereof, the court is usually under an obligation to deal with such contempt of court or investigate allegations that it has taken place. Therefore, the 1st Respondent followed the proper laid out procedure to issue arrest warrants in execution of the contempt of court orders issued.”l.That with regard to the Petitioner's allegation that the 1st Respondent has breached Articles 10(2) and 73 of the Constitution, the Petitioner fails to demonstrate, with the required precision, the manner in which the alleged breaches occurred, as is required in constitutional petitions pursuant to the principles laid down in Anarita Karim Njeru v Republic (No. 1) [1979] KLR 154.m.That the Petitioner has erred in law by seeking an Order of Mandamus to compel the Respondents to transfer Makindu Succession Cause No. 96 of 2019 and Makindu Succession Cause No. E001 of 2024 from the Senior Principal Magistrate's Court at Makindu to this Honourable Court or to any subordinate court at the Makueni Law Courts, without first complying with the procedure for transfer of suits as set out under Section 18 of the Civil Procedure Act.n.That the prayers sought for the Orders of Certiorari and Prohibition have been overtaken by events, as the impugned proceedings have already been concluded and the court has rendered its decision. As such, the orders sought have been rendered moot and incapable of undoing what has already occurred through a final judicial determination.o.That the entirety of the petitioner's claim is unmerited in that it does not disclose and demonstrate any threat or violation of the Constitution or any other laws and the same ought to be dismissed.p.That The petition is without merit, an abuse of the court process and ought to be dismissed with costs to the Respondents. 18.In rejoinder, the Petitioner filed a response dated 22/07/2025 to the grounds of opposition. He averred that despite having orders allowing him to institute succession proceedings by himself, the 2nd Respondent opted to lodge a Notice to Show Cause against the Petitioner seeking his committal to civil jail. That, under Order 22 Rule 18 of the Civil Procedure Rules, a notice to show cause is typically invoked in execution proceedings following a decree or judgment. That, lodging a Notice to Show Cause to commit to civil jail after citation orders is a breach of procedure and an illegality. 19.He averred that despite the 1st Respondent having an implied degree of expertise and competence as an Advocate of the High Court and Magistrate, he proceeded to issue Warrants of Arrest on 15/12/2023 against the Petitioner and 15 other Dependants of the Deceased’s Estate. That, he proceeded as such despite having authority to dismiss wrongfully filed pleadings, even suo moto if he deemed it appropriate. That, the issuance of the Warrants of Arrest, despite his orders and clear procedure on citations, was ultra vires hence the decision was not procedurally fair, reasonable, explicable, or legal, thus, amounting to misuse of judicial power and process and in contravention of Section 4 (1) of the Fair Administration Actions Act, No. 4 of 2015. 20.He averred that the doctrine of exhaustion was contravened by the 1st and 2nd Respondents as there was an alternative remedy to the issue at hand. That the 2nd Respondent could have filed succession proceedings and the 1st Respondent had a legal and professional duty to ensure compliance with the doctrine by striking out the Notice to Show Cause. That the 1st Respondent’s act of ratification of the Notice to Show Cause, without establishing correct procedural compliance, amounts to a breach of Article 47 and Article 50 of the Constitution of Kenya. 21.He averred that on 28/12/2023, warrants of committal to jail were issued against him and he was the only one arrested and detained despite the warrants of arrest being issued against all the 16 Dependants. That, he wrongfully spent approximately 2 weeks in remand including the new year’s holiday and the rest of his family was apprehensive and uncertain of probable arrests. 22.He averred that by endorsing punitive action in a succession matter without a lawful basis, the 1st Respondent failed to uphold the standards of expeditious, efficient, lawful, reasonable, and procedurally fair administrative action as mandated by Sections 4 and 5 of the Fair Administrative Action Act. That, the Petition and Response to the Grounds of Opposition herein raise cogent grounds of constitutional and human rights violations committed against the Petitioner that ought to be heard and determined before a court with jurisdiction to hear constitutional petitions which is the Honourable High Court herein. 23.The 2nd Respondent filed an undated Replying Affidavit where he deposed that; with regard to the allegation of violation of Article 40 of the Constitution, the Applicant has failed to demonstrate that they suffered loss and would continue to suffer substantial loss if the order sought is not granted. 24.That, with regard to alleged violation of Article 47 of the Constitution, the Applicant has not demonstrated how the action of filing a citation cause infringed on his right. 25.That, with regard to alleged violation of Article 48 of the Constitution, he deponed that it is the prerogative of the State to guarantee access to justice for all and to ensure that any fees required are reasonable and do not hinder access. 26.With regard to alleged violation of Article 50 of the Constitution, he deponed that the Applicant was granted a fair hearing during the citation proceedings. 27.He deponed that the Applicant has not met the threshold of constitutional petitions as set out in the Anarita Karimi case which prescribes that a party seeking a constitutional remedy is required to set out with reasonable precision that which is complained of, noting to stipulate which constitutional provisions have been infringed and how they have been infringed. That, the Applicant has only enumerated the constitutional provisions that have allegedly been infringed by the 1st and 2nd Respondents but has not pleaded any particulars with reasonable clarity on how those provisions have been violated and the extent of the violation. 28.He deponed that the Applicant should have appealed against the said decision if he felt aggrieved pursuant to section 65 of the Civil Procedure Act. 29.In response to alleged violations of the Fair Administrative Actions Act, he deponed that he hds no control over the decision making of any judicial officer during the conduct of their ordinary business of dispensing justice. That, the Applicant had failed to demonstrate that the 1st Respondent violated any of their rights and has merely made unsubstantiated allegations. 30.He deponed that the alleged infringement of rights is well available in civil redress without instituting this application. That, according to the doctrine of constitutional avoidance, where a dispute can be determined through another forum without necessarily raising a constitutional issue, the same should be pursued. 31.He deponed that he bought a four-acre portion of land known as 344 Muthingii Settlement Scheme for value from the deceased who died in 2017 before transferring the same to him. That, he requested the family members to take out letters of administration so that he could be recognized as a creditor and their subsequent refusal caused him to file a citation cause. Copies of proceedings are exhibited as JMK1. 32.He deponed that the Applicant sought to vacate orders of the 1st Respondent by filing Makindu Civil Misc Application No E001 of 2024 where he was granted the orders sought by Justice Limo. A copy of the order is exhibited as JMK2. 33.He deponed that the Applicant had an opportunity to lodge a claim in an Environment and Land Court and ventilate his issues thereon. That, the Applicant has since come to the realization that he has no valid grounds to rebut the claim of purchase and has recognized him (2nd Respondent) as a creditor of the estate. 34.He deponed that the claim of unfair determination has been overtaken by events as the Makindu succession cause has already been closed and he has already been recognized as a creditor of the estate. 35.He deponed that the Applicant did not adduce any committal to show that he was really incarcerated at the Makueni prison as claimed. That, the Applicant is engaging in a vexatious exercise by claiming infringement of rights on one hand and acknowledging him as a creditor on the other hand. 36.He deponed that the citation cause was closed on 18/03/2024 as the citees petitioned for letters of administration in Succession Cause No. E001 of 2024 and recognized him as a creditor of the estate hence the citation proceedings have served their purpose. The succession pleadings are exhibited as JMK3. 37.He deponed that the Applicant had not produced any documents to support his claim of medical costs incurred. 38.He deponed that the prayers for certiorari and prohibition had already been overtaken by events as the file had since been closed. That, the order for mandamus had not been properly sought and the matter had been closed hence not in a position to be transferred. 39.He deponed that this court lacked jurisdiction to entertain, hear and determine the petition as pleaded for reason that the nature of the dispute could be litigated in other legally constituted forums. That, the petition had been brought to this court in total disregard of the law and is an abuse of the court process. 40.The Petition was canvassed through written submissions. Submissions by the Petitioner 41.The issues for determination were identified to be;a.Whether it was reasonable and justifiable to issue warrants of arrest and committal to civil jail in a Citation matter.b.Whether the 1st Respondent and the 2nd Respondent exhausted the appropriate reliefs in regards to the citation application.c.Whether the Petitioner’s right to fair trial was infringed.d.Whether by the 1st Respondent issuing an injunction order serving as an eviction notice violated the Petitioner’s hereditary and proprietary rights in regards to Plot No. 344 Muthingini Settlement Scheme.e.Whether the petitioner herein is entitled to the reliefs sought 42.On whether it was reasonable and justifiable to issue warrants of arrest and committal to civil jail in a Citation matter, it was submitted in the affirmative and reliance placed on Rule 22 of the Probate and Administration Rules for the submission that if the person cited has entered an appearance but has not within 30 days after his appearance applied for a grant under sub rule (4), or has failed to prosecute his application with reasonable diligence, the citor may, in the case of a citation under subrule (1), petition the court for a grant to himself. 43.Further reliance was placed on the Estate of Steven Mwangi Mbugua(deceased) Mombasa HCCC No 1 of 2003 where the court (Sergon J) stated;“…if the person cited refuses or fails to appear upon being cited or to apply for the grant, the citor may proceed to petition the court for grant...” 44.It was submitted that upon issuance of citation orders, the remedies available to the 2nd Respondent were limited to lawful succession action and not enforcement or coercion. That, the deployment of Order 22 Rule 18 of the Civil Procedure Rules in citation proceedings is not merely a technical error but a jurisprudential breach. That, Order 22 Rule 18 of the Civil Procedure Rules only permits Notice to Show Cause in execution following a lawful judgment or decree. 45.It was submitted that the 2nd Respondent’s choice to pursue enforcement measures on 11/12/2023, like a Notice to Show Cause amounted to a legal overreach, compounding procedural error with constitutional violation. It was contended that where the law provides no room for execution, the court must offer none as doing otherwise amounts to converting procedural tools into punitive instruments, contradicting both statute and sense. Reliance was placed on Mbaya -vs- Kamau & Anor [2023] KEHC 24945 (KLR) where the ruling reinforced that the principle of procedural compliance is essential. 46.It was submitted that citation proceedings do not yield a judgment against the citees and that issuance of the Notice to Show Cause was ultra vires and procedurally defective. 47.As to whether the 1st and 2nd Respondents exhausted the appropriate reliefs in regards to the citation application, it was submitted in the negative and reliance placed on Justin Karionii Nyaga -vs- Attorney General & 2 others 120211 KEELC 1575 (KLR) where the court stated;“The tenor and import of the doctrine of exhaustion of remedies is that, where a dispute resolution mechanism has been established by a statute outside the mainstream courts, that mechanism should be exhausted before the jurisdiction of the mainstream courts is invoked. Put differently, where there exists a legitimate statutory primary dispute resolution mechanism, such as a tribunal, the mainstream courts should be the fora of last resort and not the first port of call." 48.Further reliance was placed on Matu -vs- Rubi Energy Limited [2024] KEHC 15235 (KLR) which cited the Supreme Court of Kenya in Benard Murage -vs- Fine Serve Africa Limited & 3 Others 120151 eKLR where the significance of the doctrine of exhaustion of remedies was underscored as follows;“Where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first.” 49.It was submitted that the citation proceedings culminated in non-contentious orders requiring the beneficiaries to initiate succession proceedings within sixty days and allowing the 2nd Respondent do so himself in the event of failure by the citees. That, the order functioned as a procedural invitation and not a judgment or decree capable of execution. Reliance was placed on Secretary, County Public Service Board &; Another -vs- Hulbhai Gedi Abdille 120171 KECA 643 (KL12), where the court stated;“Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime." 50.It was submitted that the Doctrine of Exhaustion prescribes that parties must pursue available statutory remedies before invoking enforcement powers or Constitutional redress. That, instead of exercising the substantive remedy granted, the 2nd Respondent escalated proceedings into punitive territory by seeking committal to civil jail. 51.It was submitted that as a Judicial Officer, the 1st Respondent had a legal and professional duty to:i.Ensure citation orders were enforced strictly as intended;ii.Strike out applications or pleadings that lacked jurisdictional foundation including a Notice to Show Cause unsupported by any decree;iii.Protect the beneficiaries from ultra vires processes, especially when the citation had already provided a lawful remedy. It was contended that the ratification of the Notice to Show Cause and issuance of warrants was an administrative overreach, ignoring the alternative remedy built into the original citation order. That, the 1st Respondent failed to exhaust the internal remedy of guiding the citor to initiate succession in accordance with Rules 21, 22 & 23 of the Probate and Administration Rules thereby breaching both judicial neutrality and administrative fairness. 52.As to whether the Petitioner’s right to fair trial was infringed, it was submitted that Article 50 of the Constitution guarantees every person a right to fair hearing. Reliance was placed on Rolloh -vs- Director of Public Prosecutions & 5 Others [2023] KEHC 17450 (KLR), which made reference to Francis Karioko Muruatetu & Anor -vs- Republic SC 2017 eKLR, where the Supreme Court of Kenya stated;“…Indeed, the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in Article 10 of the Universal Declaration of Human Rights, and in the same vein Article 25(c) of the Constitution elevates it to a non-derogable right which cannot be limited or taken away from a litigant.” 53.Further reliance was placed on Pinnacle Projects Ltd -vs- PCEA Ngong Parish PCEA Foundation HCCC 21 of 2012 where the court stated;“Fair Trial in civil cases includes; the right of access to Court, the right to be heard by a competent, independent, impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit filed, the right to public hearing and right to be heard within reasonable time………..I have this to say, it is important that in any judicial process adjudication parties involved be given an opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrate. It is not lost that procedural fairness is deeply ingrained in our administration of justice system.” 54.It was submitted that the Petitioner was committed to civil jail pursuant to a Notice to Show Cause issued in citation proceedings, a process that by law does not culminate in executable orders or liability. That, he was neither served with individualized notice explaining the grounds for committal nor given an opportunity to object, respond, or seek counsel before being incarcerated, a clear ignorance of the due process. 55.It was submitted that the actions of the 1st Respondent were in contravention of Article 47 of the Constitution as well as sections 4 and 5 of the Fair Administrative Actions Act. Reference was made to Article 29 of the Constitution for the submission that every person has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause. It was contended that the Petitioner was the only citee arrested after issuance of an arrest warrant for the 16 citees and no rational or legal basis was provided for the unilateral application of punitive orders. Reliance was placed on Fleur Investments Limited -vs- Commissioner of Domestic Taxes & Anor [2018] eKLR for the submission that persons charged with statutory powers and duties ought to exercise the same reasonably and fairly. 56.As to whether the Petitioner’s hereditary and proprietary rights were violated by issuance of an injunctive order, reference was made to Article 40 of the Constitution for the submission that every person has the right either individually or in association with others to acquire and own property of any description in any part of Kenya. Reliance was placed on Tolksdorf -vs- Mwangi & 3 others [2025] KEELC 848 (KLR) for the submission that courts have a duty to protect proprietary rights. 57.It was submitted that the Petitioner's claim to Plot No. 344 Muthingini Settlement Scheme is rooted in his status as a direct beneficiary of his late father's estate. That, his father had already effected a subdivision between the Petitioner and his brother thus establishing a clear hereditary interest. That, the attempt by the 2nd Respondent to claim ownership through an irregular and unverified Agreement for Sale directly challenges this established hereditary right. That, the 1st Respondent's decision to act upon such a dubious agreement, despite its glaring flaws, represents a systemic failure to protect the legitimate hereditary interests of the Petitioner and other dependents. 58.It was submitted that Sections 152B-152G of the Land Act, 2012, prescribe mandatory procedures for eviction from land, requiring formal notice and judicial intervention through a properly instituted suit. That, eviction notices are substantive orders that cannot be issued in an interlocutory application and must be pleaded through a substantive suit in a court with jurisdiction to hear land cases. Reliance was placed on Biegon -vs- Rono & 3 Others [2024] KEELC 5989 (KLR) where the court stated that eviction orders must be issued after judgment in a substantive suit. Reliance was also placed on William Musembi & 13 Others -vs- Moi Educational Centre [2021] eKLR where the Supreme Court of Kenya emphasized that forced evictions without procedural safeguards violate Articles 28, 29, and 43 of the Constitution thereby rendering it an illegality. 59.It was submitted that the Petitioner and his co-dependants have been in continued occupation of the property for decades hence any interlocutory orders would be void as their nature dictates that they ought to prevent occurrence of an event. It was submitted that Sections 24-26 of the Land Registration Act confer indefeasibility of title unless impeached through fraud or procedural irregularity in a substantive suit. That, the interlocutory orders issued against occupants of a land should also meet the strict parameters set in Giella -vs- Cassman Brown whereby all three limbs must be satisfied simultaneously. 60.It was submitted that the Petitioner’s right to property was violated in the following ways;i.unlawful dispossession predicated upon a sale agreement that is null and void;ii.temporary injunctive order which functioned as an eviction order. It was contended that the arbitrary and punitive orders, including the civil jail commitment and subsequent arrest solely of the Petitioner, demonstrate a clear intent to exert undue pressure and remove him from his land without due process. That, the continuous threat to his occupation and ownership is a direct assault on his proprietary rights. 61.As to whether the Petitioner is entitled to the reliefs sought, it was submitted that in exercise of its Constitutional jurisdiction, this court has power to grant appropriate relief which includes award of damages. It was acknowledged that special damages must be specifically pleaded and strictly proved. It was submitted that the Petitioner meticulously pleaded the particulars of the special damages incurred and directly linked them to the unlawful arrest and detention. That, owing to the need for further checkups, the Petitioner has continued to incur future medical expenses. That, these costs are specific, quantifiable and verifiable through medical records and receipts which the Petitioner is prepared to produce as evidence. 62.Further, it was submitted that the Petitioner seeks compensation for non-pecuniary loss and Constitutional violations arising from physical suffering and health deterioration, profound mental pain and anguish as he spent the December holidays as well as the New Year’s Eve celebrations alone at the remand police station as well as for the psychological toll of being unlawfully separated from family during a period typically reserved for togetherness. That, the award of general damages will serve to vindicate these infringed rights and provide a measure of solace for the non-pecuniary losses suffered due to such grave constitutional breaches. Submissions by the 1st Respondent 63.The issues for determination were identified to be;a.Whether the Petition is merited.i)Whether there is any violation of constitutional rights claimed in the Petition.ii)Whether the Petitioner's rights are non-derogable as per Article 25 of the Constitution of Kenya or can be limited by Article 24 of the Constitution.b)Whether the Petitioner failed to pursue appropriate remedies to address his grievances.i)Whether the Petitioner exhausted all appropriate remedies before lodging the Petition.ii)Whether the Petitioner prayed for an improper and legally incorrect procedure for the transfer of a Succession matter that is ongoing regarding the same suit property.c)Whether the 1st Respondent is liable when executing their judicial duties. 64.As to whether the Petition is merited, it was submitted that for a Petition to attain a constitutional threshold, it must be pleaded with precision. Reliance was placed on Mumo Matemu -vs- Trusted Society of Human Rights Alliance & Others (2013) eKLR where the court opined that:“We cannot emphasize the importance of precise claims in due process, substantive justice, and the exercise of jurisdiction by a court. In essence, due process, substantive justice and the exercise of jurisdiction are a function of precise legal and factual claims. However, we also note that precision is not coterminous with exactitude. Restated, although precision must remain a requirement as it is important, it demands neither formulaic prescription of the factual claims nor formalistic utterance of the constitutional provisions alleged to have been violated. We speak particularly knowing that the whole function of pleadings, hearings, submissions and the judicial decision is to define issues in litigation and adjudication, and to demand exactitude ex ante is to miss the point….."It is our finding that the Petition before the High Court was not pleaded with precision as required in constitutional petitions. Having reviewed the Petition and supporting affidavit, we have concluded that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-Corruption Commission Act, 2011. Accordingly, the Petition did not meet the standard enunciated in the Anarita Karimi Njeru case." 65.Further reliance was placed on Timothy Njoya -vs- Attorney General & Another [2014] KEHC 8340 (KLR) where Justice Lenaola stated that;“I agree with the above reasoning and with respect, the Petitioner cannot come to court to seek facts and information he intends to use to prove the very case that he is arguing before the Court. He must also plead his case with some degree of precision and set out the manner in which the Constitution has been violated, by whom and even state the Article of the Constitution that has been violated and the manner in which it has been violated.” 66.It was submitted that the Petitioner fails to show how his rights as protected under Article 40, 47, 48 and 50 have been infringed by the 1st Respondent hence fails to meet the threshold as guided by the authorities above. It was contended that the Citation Order and the committal orders issued thereafter, arising from contempt of court, by the 1st Respondent were legal orders in order to enforce its court orders. 67.It was submitted that the Petitioner’s property rights under Article 40 of the Constitution were not infringed because according to section 45 of the Law of Succession Act, the Petitioner’s act of continuing to occupy the suit property would amount to intermeddling thus the purpose of the injunctive orders was to stop the Petitioner and his family from continued occupation. It was contended that the right to property is not absolute and can be limited by Article 24 of the Constitution. Reliance was placed inter alia on Kenya Tea Development Agency Holdings Limited & Another -vs- Directorate of Criminal Investigations & 2 Others (Petition e060 OP 2023) 120241 KEHC 8899 (KU) (Constitutional and Human Rights) where it was held that;“Under article 24, a right or fundamental freedom may be limited if the limitation is reasonable and justifiable in open and democratic society based on human dignity, equality, freedom and taking into account the importance of the purpose of limitation, the nature and extent of limitation." 68.With regard to alleged violation of Article 47 of the Constitution, reliance was placed on Judicial Service Commission -vs- Mbalu Mutava & Another [2015] KECA 741 (KLR) where the court stated;“The principles appear to refer to the same thing, on deeper examination they are of different legal character and their application may not be necessarily the same. Without attempting to lay an exhaustive distinction, the right to fair administrative action under article 47 is a distinct right from the right to fair hearing under article 50(1). Fair administrative action on the other hand refers broadly to administrative justice in public administration. It is concerned mainly with control of the exercise of administrative powers by state organs and statutory bodies in the execution of constitutional duties and statutory duties guided by constitutional principles and policy considerations. The right to fair administrative action, though a fundamental right, is contextual and flexible in its application and as article 24(1) provides, can be limited by law. 'Fair hearing" in article 50(1) as the text stipulates applies where any dispute can be resolved by the application of the law and applies to proceedings before a court or, if appropriate, another independent and impartial tribunal or body.” 69.Further reliance was placed on Dry Associates Limited -vs- Capital Markets Authority & Another Interested Party (201210 eKLR where the Court stated;“Article 47 and 50(1) protect separate and distinct rights which should not be conflated. Although the two rights embody and give effect to the general rules of natural justice, they apply to different circumstances. Article 50(1) applies to a court, impartial tribunal or a body established to resolve a dispute while Article 47 applies administrative action generally... Article 47 is intended to subject administrative processes to constitutional discipline hence relief for administrative grievances...” 70.Consequently, it was submitted that Article 47 of the Constitution guarantees the right to fair administrative action which applies to decisions made by public bodies in administrative or quasi-judicial settings hence the judicial action issued by the 1st Respondent does not fall under the examination of infringement of Article 47. 71.With regard to alleged violation of Article 50 of the Constitution, it was submitted that the Petitioner failed to show that the 1st Respondent was not impartial and independent and that the hearing in question was procedurally unfair. It was contended that the Petitioner must demonstrate disregard for constitutional values in the decision-making process of the 1st Respondent and not mere dissatisfaction with the outcome. That, the Petitioner had an opportunity to challenge the legality of the Citation Order through appeal, and failure to do so does not translate to a constitutional violation. 72.Reference was made to section 38 & 40 of the Civil Procedure Act and Rule 21 of the Probate & Administration Rules for the submission that the Petitioner was given ample time of about 3 months to respond to the Citation Order hence his due process rights as enshrined under Article 50 were not violated. Reliance was placed on JSC -vs -Mbalu Mutava (supra) where the Court of Appeal stated;“Fair hearing in article 50(1) as the text stipulates applies where any dispute can be resolved by the application of the law and applies to proceedings before a court, or if appropriate, another independent and impartial tribunal or body. It is clear that fair hearing as employed in article 50(1) is a term of art which exclusively applies to trial or inquiries in judicial proceedings where a final decision is to be made through the application of law to facts. By article 25, that right cannot be limited by law or otherwise." 73.As to whether the Petitioner failed to pursue appropriate remedies to address his grievances, it was submitted that the Petitioner failed to pursue remedies such as lodging an appeal or seeking review of the citation order. Reliance was placed on the following cases;a.Justin Karionii Nyaga -vs- Attorney General & 2 others (2021) KEELC 1575 (KLR) where the court explained the doctrine of exhaustion of remedies as follows;“The tenor and import of the doctrine of exhaustion of remedies is that, where a dispute resolution mechanism has been established by a statute outside the mainstream courts, that mechanism should be exhausted before the jurisdiction of the mainstream courts is invoked. Put differently, where there exists a legitimate statutory primary dispute resolution mechanism, such as a tribunal, the mainstream courts should be the fora of last resort and not the first port of call.”b.Benard Murage -vs- Fine Serve Africa Limited & 3 Others (2015) eKLR where the Supreme Court of Kenya stated;“In our view there is considerable merit that where there is clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed."c.Secretary, County Public Service Board &; Another -vs- Hulbhai Gedi Abdille (2017) KECA 643 (KL12) where the court stated;“Time and again it has been said that where there exists other sufficient and adequate avenue or forum to resolve a dispute, a party ought to pursue that avenue or forum and not invoke the court process if the dispute could very well and effectively be dealt with in that other forum. Such party ought to seek redress under the other regime."d.KKB -vs- SCM & 5 Others (Constitutional Petition 014 of 2020) (2022) KEHC 289 (KLR) (22 April 2022) (Ruling) where the court stated;“The doctrine of ripeness and constitutional avoidance gives credence to the concept that the Constitution does not operate in a vacuum or isolation. It has to be interpreted and applied in conjunction with applicable legislation together with other available legal remedies. Where there are alternative remedies, the preferred route is to apply such remedies before resorting to the Constitution. The possibility of the elevation of any dispute to a constitutional issue is what is sought to be averted by the doctrines of ripeness and constitutional avoidance. It is borne out of a realization that all legislative or common-law remedies are part of the legal system." 74.It was submitted that the Petitioner errs in law by seeking an Order of Mandamus to compel the Respondent to transfer Makindu Succession Cause No. 9 of 2019 and Makindu Succession Cause No. E001 of 2024 from the Senior Principal Magistrate's Court at Makindu to this Honourable Court or to any subordinate court at the Makueni Law Courts, without first complying with the procedure for transfer of suits as set out under Section 18 of the Civil Procedure Act. 75.As to whether the 1st Respondent is liable when executing judicial duties, it was submitted that Article 160 of the Constitution enshrines judicial immunity whose primary purpose is to protect judicial officers from personal liability, thereby allowing them to perform their duties without fear of personal repercussions, thus upholding the independence of the judiciary. It was contended that the 1st Respondent acted in good faith and within the scope of their lawful jurisdiction hence not liable to pay the incurred medical bills. That section 48 of the Law of Succession Act gave the 1st Respondent the necessary jurisdiction to issue the Citation Order against the Petitioner as well as the Contempt of Court Order. Reliance was placed on the following cases;a.Bellevue Development Company -vs- Gikonyo & 3 Others (Petition 42 of 2018)120201 KESC 43 (KLR) where the Court stated that:“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."e.Moses Wamalwa Mukamari -vs- John Makali & Another, where the High Court underscored the objective of Article 160 of the Constitution as follows;“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."f.Maina Gitonga -vs- Catherine Nyawira Mama & Another (2015) eKLR, where the court stated;“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, Judicial immunity is necessary for various policies..." 76.It was submitted that the Petitioner failed to elaborate that the 1st Respondent failed to act in good faith. Reliance was placed on the case of Bellevue Development Company Ltd -vs- Gikonyo & 3 Others (supra) where the Court relied on Public Prosecutor -vs- South African Reserve Bank 120191 ZACC 29 where the Court stated that,“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.” 77.Consequently, it was submitted that the Respondent acted within its inherent power and jurisdiction, and that it delivered a judicial action in its judicial capacity. Further reliance was placed on Gitonga -vs- Catherine Nyawira Maina & Another (supra) where the Article 160 was expounded as follows;“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 positioned 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 centre as wounded pride dictates." 78.In conclusion, it was submitted that the Petitioner failed to meet the threshold for constitutional petitions as was established in the Anarita Karimi Njeru case. Submissions by the 2nd Respondent 79.The Respondent identified the issues for determination to be;a.Has the Petitioner met the threshold for Constitutional Petitions?b.Whether the Petitioner is entitled to the prayers sought.c.Who is to bear the costs of the Petition? 80.As to whether the Petitioner has met the threshold for Constitutional Petitions, it was submitted that not all violations of rights lead to Constitutional remedies because a court must first determine if a Constitutional right was actually violated, if the proper legal procedures were followed and if the specific circumstances warrant judicial intervention for vindicating the right rather than for routine administrative matters. That, while the court has a broad discretion to grant appropriate relief to protect Constitutional rights, it also has the discretion to dismiss claims especially if no violation is proven or if other remedies are available. Reliance was placed on Anarita Karimi Njeru -vs- Republic (1979) KECA 12 (KLR) where the court stated;“We would however again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that which he complains, the rights said to be infringed and the manner in which they are to be infringed.” 81.It was submitted that the Petitioner has only enumerated the Constitutional provisions that the 1st and 2nd Respondents have allegedly infringed but has not pleaded any particulars with reasonable clarity on how those provisions have been violated and the extent of the violation. 82.It was submitted that in line with the doctrine of Constitutional avoidance, courts have been keen to ensure that an alternative forum is pursued where a dispute can be determined through such forum without necessarily raising a Constitutional issue. Reliance was placed on Grays Jepkemoi Kiplagat -vs- Zakayo Chepkoga Cheruiyot [2021] eKLR where the court stated;“I need to observe that parties are increasingly filing matters that are essentially Civil matters and christening the same as Constitutional petitions which is not proper. Where there is the alternative remedy of filing a suit in the ordinary civil courts, a party ought not to invoke the jurisdiction of the Constitutional court..” 83.As to whether the Petitioner is entitled to the prayers sought, it was submitted in the negative for the reason that the matter arose out of succession proceedings. That, on 18/03/2024, the citation cause was closed as the citees therein had eventually petitioned for letters of Administration in Succession Cause No. E001 of 2024 wherein they recognized the 2nd Respondent as a creditor. That, the citation proceedings have served their purpose and the file herein should be closed just like the citation one. 84.As to who should bear the costs of the Petition, it was submitted that the costs should be borne by the Petitioner entirely. 85.Having carefully considered the petition, the response and rival submissions, I find that the following issues arise for determination;a.Whether the Petition has met the threshold for Constitutional petitions.b.Whether the Petitioner is entitled to the prayers sought.c.Who should bear the costs of the petition? Analysis & Determination Whether the Petition has met the threshold for Constitutional petitions 86.The Respondents submitted that this matter is not a Constitutional petition because the Petitioner has merely cited various provisions of the constitution but failed to specify the manner in which the Respondents have violated those provisions. 87.The locus classicus in Constitutional petitions is the case of Anarita Karimi Njeru and Mumo Matemu (supra) which obligates a Petitioner to set out with a reasonable degree of precision that which he complains, the rights said to be infringed and the manner in which they are infringed. 88.The Petitioner’s complaints emanate from the orders of the 1st Respondent issued in Makindu Succession (Citation) Cause No. 96 of 2019; Julius Musyoka Kimunduu -vs- Lydia Kamii & 15 Others. The 1st Respondent is a Judicial Officer who enjoys judicial immunity under Article 160(5) of the Constitution which provides that;“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.” 89.The simple interpretation of the above provision is that a litigant who is aggrieved by an order of a Judge or Judicial Officer should pursue the prescribed channels to have the order varied, reviewed or overturned. Indeed, the doctrine of judicial immunity is necessary as explained in Maina Gitonga -vs- Catherine Nyawira Maina & Another (supra) to wit ‘Judicial officers should not be put in a position that forces them to look over their backs every time they make a decision, whenever a judicial officer has to make a decision, he should make such decisions in good faith and without fear that he will be taken to court for making the decision…… 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.” 90.From the foregoing, it is evident that the doctrine of constitutional avoidance is applicable in this matter. The grievances raised by the Petitioner should have been addressed through an appellate or review process as the 1st Respondent cannot be held 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. It is not in dispute that the 1st Respondent was exercising a judicial function by presiding over the Citation Cause hence the commonsensical presumption that he was acting lawfully and in good faith. 91.The upshot is that this matter does not meet the threshold for a Constitutional petition. Whether the Petitioner is entitled to the prayers sought 92.A matter which does not qualify as a constitutional Petition should be dismissed without much ado but as was stated by J. Ngugi J as he then was, in Kimunai ole Kimeiwa & 5 others v Joseph Motari Mosigisi (The Then District Commissioner Rongai District) & 3 others [2020] KEHC 10267 (KLR)This Court is, by constitutional definition and design, potentially fallible 93.Hence the propriety to interrogate the reliefs sought in the ‘Petition’. 94.Article 23 (3) of the Constitution provides for the reliefs thusIn any proceedings brought under Article 22, a court may grant appropriate relief, including—(a)a declaration of rights;(b)an injunction;(c)a conservatory order;(d)a declaration of invalidity of any law that denies, violates, infringes, or threatens a right or fundamental freedom in the Bill of Rights and is not justified under Article 24;(e)an order for compensation; and(f)an order of judicial review. 95.The Petitioner sought several declarations including a declaration that the 1st Respondent’s decision was based on a void agreement for sale. The agreement alluded to is the one relied on by the 2nd Respondent in the citation proceedings to claim that he bought the suit land from the deceased. The sale is contested by the Petitioner and this means that a court has to decide the question of ownership between the estate and the 2nd Respondent. Ownership and proprietorship of property revolve around title and that places the matter squarely under Article 162 of the Constitution which in turn vests jurisdiction on the Environment & Land Court via section 13 of the Environment & Land Court Act. 96.The Petitioner did not adduce evidence to show that such a pronouncement of invalidity had been made by the court with jurisdiction and even if such a pronouncement existed and the 1st Respondent proceeded to make a mistaken decision based on such void agreement, then that would be an issue of appeal or review. 97.Further, the Petitioner sought various orders of certiorari with regard to orders issued in Makindu Succession (Citation) Cause No. 96 of 2019. The impugned orders issued by the 1st Respondent on 11/09/2023 were; 1.That the citees to file succession within 60 days failure of which the citor will be at liberty to do so. 2.That mention on 11/12/2023 for confirmation. 98.The Citation Cause was closed on 18/03/2024 after the Citor’s Advocate informed court that the Citees had filed Succession Cause E001 of 2024 and recognized the Citor. The closure of the Citation Cause meant that even the temporary injunctive orders issued by the 1st Respondent on 14/08/2023 ceased to exist. It is therefore evident that the prayer for orders of certiorari has been overtaken by events. The prayer for an order of prohibition has also been overtaken by events as the Citation cause which the Petitioner sought to discontinue has already been closed. Similarly, the prayer for an order of mandamus has been overtaken by events as it sought to have the Citation Cause transferred from Makindu Law Courts to any other court within Makueni region. 99.The prayer for damages (special, general & punitive) is obviously untenable as that would be dependent on a finding of Constitutional wrong doing on the part of the respondents amounting to violation of the rights of the Petitioner. 100.The Petitioner had the opportunity to pursue damages in a civil claim where the Petitioner would establish the wrong doing on the part of the respondents and their liability for his claim. 101.In this case there are no declarations that the respondents had violated the rights of the Petitioner pursuant to the finding that the Petition has not met the threshold of a constitutional petition . 102.There would be no basis for an award for compensation/damages. 103.Ultimately I find that the Petitioner is not entitled to the prayers sought. Who should bear the costs of the petition? 104.Costs follow the event. This petition was not in the public interest. 105.The petition is dismissed. The Petitioner will bear the costs of this petition. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT ON 17TH JULY 2026MUMBUA T MATHEKAJUDGEPetitioners AdvocateV.O.N Makau Law & Co.vonmakaulawco@gmail.com1st Respondent’s AdvocateThe Hon. Attorney General2nd Respondent’s AdvocateAndrew Makundi & Co. Advocates