[2022] KEHC 11937 (KLR)

Maalim & another v Nyagah, Principal Magistrate; Wajir Guest House & another (Interested Parties) (Judicial Review Miscellaneous Application E001 of 2022) [2022] KEHC 11937 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11937 (KLR)

Republic of Kenya

In the High Court at Garissa

Judicial Review Miscellaneous Application E001 of 2022

A Ali-Aroni, J

May 13, 2022

Between

Abdullahi Hassan Maalim

1st Applicant

Bare Idris Amin

2nd Applicant

and

Mugendi Nyagah, Principal Magistrate

Respondent

and

Wajir Guest House

Interested Party

Ogle Construction Co. Ltd

Interested Party

Ruling

1. On the 20th of January 2022 the applicants Abdullahi Hassan Maalim and Bare Idris Amin moved the court through a certificate of urgency seeking leave to move the court for Judicial Review orders of certiorari, prohibition and for the leave to operate as a stay. The applicants named the Principal Magistrate Wajir Hon. Mugendi Nyaga as the respondent.

2. On hearing the application, the court on the 26th of January 2022 granted leave which leave was to operate as a stay. Further the court ordered for the substantive motion to be filed.

3. Counsel for the interested parties filed a Notice of Preliminary Objection on the 23rd of February 2022 seeking to have the suit struck out for failure to comply with the mandatory provisions of Order 53 rule 3 of the Civil Procedure Rules. Secondly it was contended that the suit goes against the provisions of Article 160(5) of the Constitution and Section 45(1) of the Judicial Service Act, No. 1 of 2011.

4. In his submissions counsel for the interested parties urged that since leave was granted no substantive motion was filed contrary to the provision of Order 53 rule (3) of the Civil Procedure Rules which provision is mandatory. In this regard he relied on Republic vs Public Procurement Administrative Review Board & Another; Met Security & Communications System Ltd/Megason Electronics & Control [198] (JV) & Another, Exparte Magal Security Systems Ltd/Firefox Kenya Ltd (JV) [2019] eKLR.

5. Counsel further urged that the suit goes against Article 160(5)of the Constitutionof Kenya and Section 54(1) of the Judicial Service Act as the named respondent is a judicial officer and the applicants have placed a legal liability on him on a matter he handled officially; they ought to have sued the court. In this regard he relied on Bellevue Development Company Ltd v Francis Gikonyo & 7 Others [2018] eKLR.Based on the above he sought for the suit to be dismissed.

6. The respondent’s counsel supported the preliminary objection. They too had not been served with the substantive motion.

7. In his response counsel for the applicants’ indicated that the substantive motion was filed together with the application for leave and both served. He contended relying on the authority of Republic vs Public Procurement Administrative Review Board & Another [supra] that the word ‘shall’ may also mean ‘may’ depending on the circumstances of a case.

8. Further he urged that if a procedural matter is in issue an objection is not suited as the court can always give an extension and therefore the preliminary objection is misplaced as the applicants ought to have moved the court by way of an application.

9. As for the judicial officer being named as a party to the suit, does not take away his immunity.

10. Counsel further urged that should the suit be struck out the applicants will remain exposed; any procedural defect can be rectified.

11. Having considered the rival arguments there are 4 issues in the courts view determination namely; -(i)Whether or not a substantive motion was filed within time?(ii)Whether or not the parties before court are proper?(iii)Whether to vacate the order of stay?(iv)Whether or not to strike out the suit?

12. From the court record on the 26th of January 2022 the following documents were filed ;(i)A certificate of urgency.(ii)A chamber summons.(iii)A statutory statement.(iv)A verifying affidavit (with several annexures).

13. In his submissions counsel for the applicants indicated that a substantive motion had been filed together with the application. Despite the fact that filing the substantive motion with the application would have been premature, there is no such application as part of court record. Documents filed have been enumerated above.

14. Having stated as above and clearly not having such an application on record it means that the applicants failed to comply with the mandatory requirement to file the substantive petition within the time limits given and the issue of ‘shall’ or ‘may’ does not even arise in this instance as this court has not been moved to extend the time prescribed. Needless to state that Order 53 rule 3 as was been in Republic vs Public Procurement Administrative Review Board & Another (supra) is couched in mandatory terms such that failure to comply with the timelines renders a matter incompetent.

15. Since the applicants have no motion before this court for determination it follows that there is no competent suit before court as the matter has no legs to stand on. The chamber summons was to be followed by a substantive motion. Failure to file the same has also rendered the stay order useless.

16. The issue as to whether a judicial officer can be personally liable; sued due to an action he officially undertook is moot. The law and case law are very clear on this matter. A judicial officer is immune to liability while undertaking his official duty whether his decision is correct or otherwise. The Court of Appeal reiterated this point in the case of Bellevue Development Company Ltd vs Francis Gikonyo & 7 Others [2018] eKLR where it stated inter alia;“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 their judicial functions.”In Moses Wamalwa Mukamari v John O. Makali & 3 Others [2012] eKLR it was stated;“The protection offered to judicial officers in Article 160(5) of the Constitution is inherent in the independence of the judiciary as state organ within the doctrine of separation of powers. The protection encapsulates protection from being sued in a personal capacity in a cause of action based on an act or omission emanating from the lawful performance of a judicial function. I am convinced; this is intended to make the cover against personal liability complete, especially to prevent the essential substance of the protection from oozing out. If it were to be the contrary, that kind of interpretation will result into an absurdity, because, allowing the officer to be sued and appear in his personal capacity in a suit based on an act he did in the lawful performance of a judicial function, will already have blown away the very constitutional cover for the officer’s fallibility provided under Article 160(5) of the Constitution.……it will be contrary to the Constitution to enjoin the judicial officer in a suit challenging what he did in the lawful exercise of a judicial function. On this basis, the correct party in a proceeding such as this is the Attorney General, who is already a party in the suit…… to allow a judicial officer to be named as a party in this suit, will not only violate the constitutional restriction on that kind of practice, but will also extend embarrassment to the judicial officer as well as the judiciary- a state organ exercising delegated sovereign power of the people.”

17. Yet in another case Maina Gitonga vs Catherine Nyawira Maina & Another [2013] eKLR the court had this to say on the same subject;“It is undoubted that under the established doctrine of judicial immunity, a judicial officer is absolutely immune from a criminal or civil suit arising from acts taken within or even in excess of his jurisdiction. Judicial immunity is necessary for various policies. The public interest is substantially weakened if a judge or a magistrate allows fear of a criminal or civil suit to affect his decisions. In addition, if judicial matters are drawn into question by frivolous and vexatious actions, ‘there never will be an end of causes: but controversies will be infinite.’’

18. From the pleadings the applicants were certainly aggrieved by the decision of the trial court. The remedy to the aggrievance lies in an appeal to the superior court but not through suing of the judicial officer who is protected by the Constitution from civil and criminal liability from his act or omission when undertaking his official function.The immunity is absolute such that suing him as a party as the applicants did in this case is contrary to the law and not just a procedural mistake. Indeed, suing is ignoring the immunity enjoyed by the judicial officer.

19. Consequently, and for avoidance of doubt the suit filed by the applicants must fail on two fronts failure to file the substantive motion within time and secondly for enjoining a wrong party to the suit. The preliminary objection is upheld.

DATED, DELIVERED AND SIGNED AT GARISSA THIS 13 TH DAY OF MAY, 2022. ………………………………ALI-ARONIJUDGE