[2015] KEHC 1656 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

PETITION NO 10 OF 2014

MAINA GITONGA……………………………....…………PETITIONER

VERSUS

CATHERINE NYAWIRA MAINA…………….......….1ST RESPONDENT

THE RESIDENT MAGISTRATES COURT, NYERI…2nd RESPONDENT

In the matter of Articles 22, 23, 25 C, 27, 45 (3), 53 (1) (e & (2) and 27 (1) of the Constitution of Kenya as read together with the Children’s Act No. 8 of 2001

and

In the matter of parental rights, duties and responsibilities on maintenance as per Sections 24 (1), 28, 90 (a), 91 (b), 96 (1) and 101 (1) & (7) of the Children’s Act No. 8 of 2001

And

In the matter of the contravention of Petitioner’s fundamental rights and freedoms under articles 25(c), 27 (1), 45 (3), and 53 (1), (e), & (2) of the Constitution of Kenya 2010

RULING

By a petition dated 7th July 2014, expressed under the provisions of Articles 22, 23, 25C, 27, 45(3), 53(1), (e) & (2) and 27 (1)of the Constitution of Kenya 2010 as read with the Children’s Act No. 8 of 2001 and Sections 24 (1), 28, 90 (a), 91 (b), 96 (1) & 101 (1 & (7) the Petitioner moved this honourable court seeking the following orders against Catherine Nyawira Maina, the only Respondent in the original Petition:-

That the rulings dated 14/2/14 and 20/6/14 and consequent orders issued by Mr. J. Aringo the Honourable Resident Magistrate on 20th February 2014 be and are hereby declared unconstitutional having infringed the provisions of Articles 25, 27, 45 & 53 of the Constitution of Kenya.

The Honourable court does declare that the petitioner’s fundamental rights have been infringed and continue to be infringed by the decision of the Honourable, Mr. J. Aringo, the Resident Magistrate made on 14. 2.2014 in Nyeri Divorce Cause No. 9 of 2013 and the said decision and consequential orders should be quashed as the same are unreasonable and unconstitutional.

It be declared that the intended committal of the petitioner to civil jail is unconstitutional and is in breach of the petitioners fundamental rights and therefore cannot be effected.

That the cost of this petition be met by the respondent

Any further or other relief that this court may deem fit and just to grant.

The petition was accompanied by a notice of motion whereby the petitioner sought orders seeking to inter aliastay the orders in Divorce Cause No. 9 of 2013 pending the hearing and determination of the petition. In her grounds of objection to the said notice of motion the first Respondent opined that the Petition herein is bad in law and incompetent for mis-jointer and non-jointer since the court that made the orders in question was not a party to the suit, a position that was reiterated in the Respondents Replying affidavit filed on 25. 3.15.

On 11. 5.2015 counsel for the Petitioner sought leave to amend the Petition which was granted and the Petitioner filed an amended Petition. The only amendment in the said Petition is the inclusion of the Resident Magistrates Court at Nyeri described a paragraph 1a of the amended Petition “as the court handling the Petitioners Divorce number 9 of 2014 presided over by the Hon. Resident Magistrate Hon. J. Aringo who delivered the orders being challenged in this Petition.”In the prayers, the Petitioners added another prayer, namely ‘that the order herein be served upon the 2nd Respondent for compliance.”

Whereas the said amended was intended to cure the objection raised by the Respondent referred to above, the amendment invited more trouble from the Counsel for the added Respondent who promptly filed a notice of preliminary objection grounded under Article 160 (5) of the Constitution of Kenya and Section 6 of the Judicature Act.[1] Article 160 (5) of the Constitution provides as follows:-

“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.”

Section 6of the Judicature Act provides as follows:-

“No judge or magistrate, and no other person acting judicially, shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of; and no officer of a court or other person bound to execute the lawful warrants, orders or other process of a judge or such person shall be liable to be sued in any court for the execution of a warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it.”

Although in the amended Petition ‘The Resident Magistrates Court at Nyeri” has been named as the 2nd Respondent, paragraph 1a of the amended Petition reads as follows:-

“The 2nd Respondent is the Court Handling the Petitioner’s Divorce Cause No. 9 of 2014 presided over by Hon. J. Aringo Resident Magistrate who delivered his ruling on 14. 2.2014 and latter (sic) issued consequent orders on 20. 2.2014 in breach of the Petitioners fundamental constitutional and statutory rights hence the Petition”

At the hearing of the preliminary objection Counsel for the second Respondent Mr. Makori cited Article 160 (5) of the Constitution of Kenya 2010 and Section 6 of the Judicature Act both of which are reproduced above and argued that a judicial officer is protected under the law from both civil and criminal liability as stipulated under the above provisions. Counsel submitted that the best option for the Petitioner was to file an appeal against the orders in question and referred to several authorities. Further counsel argued that constitutional petitions ought to be resorted to in cases of serious constitutional breaches.

Counsel for the first Petitioner supported the submissions by Mr. Makori and urged the court to allow the objection.

The Petitioners counsel submitted that the preliminary objection had no basis and added that he second Respondent was added to the proceedings for the purposes of ensuring that the orders are served. Counsel argued that the second respondent refers to the court not the individual.

It is important at the outset to state the nature of the preliminary objection the subject of this ruling. In this connection I find useful guidance in the words of Mulenga, JSC of Uganda in the case of Baku Raphael Obudra & Another vs Attorney General[2]where he said as follows:-

“Before considering the grounds of appeal, it is useful to put the remaining point of objection in the proper legal perspective. First, I should reiterate here, what I said in Ismail Serugo vs Kampala City Council,[3] that when dealing with preliminary points of objection, it is always important and useful, to have regard to the procedural law under which they are raised. Distinction must be made between points of objection as to form of a pleading and those as to the substance of the case. It is one thing to object that a plaint does not disclose a cause of action, and quite another to object that the claim in the suit is not maintainable in law. That is because the outcome is different. In the latter category the court decides on the merits of the case on basis of law only. …………”(Emphasis added)

In the instant case the objection falls under the former category only. The Petitioner in paragraph 1a of the Petition reproduced above has clearly indicated who the second Respondent is in this case. He has mentioned the name of the Magistrate. Clearly, that offends the provisions of Article 160 (5) of the constitution and Section 6 of the Judicature Act cited above.

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.[4] 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.’’[5]

The leading modern case on the doctrine of judicial immunity is Stump vs Sparkman[6]in which the U.S. Supreme Court held that a judge will remain absolutely immune from damage suit “if he acted within his jurisdiction, or even in excess of his jurisdiction” but not in the ‘clear absence of all jurisdiction’ and the ‘act’ he performed was a‘judicial act.’The importance and necessity of the judicial immunity doctrine is well established. In Stump vs Sparkman, the Supreme Court for the first time established what constitutes a judicial act for purposes of judicial immunity. The Court developed a two-factor test for determining whether or not the judge’s act is a ‘judicial” one. The first factor relates to ‘nature of the act itself’ and the second factor is whether the parties dealt with the judge in his judicial capacity. Turning to our present case, I find no difficulty in holding that the decision of the learned Magistrate was a judicial act within the above two tests.

To understand the above test further, it’s necessary to examine the facts in the Stamp case cited above. In the said case, a document containing a petition to have a tubal ligation performed on a minor was presented to Judge Stamp by the minor’s mother. She stated in the petition that her daughter was 15 years old and somewhat retarded, although the girl had attended public school and had been promoted with her class each year. The petition also stated that the minor had stayed out overnight on several occasions with youths and older men, and as result of her behaviour and her low mentality a tubal ligation would be in the child’s best interests and would prevent unfortunate circumstances from occurring. The judge approved and signed the petition in an ex parte proceeding without a hearing, and without notice to either the girl or to anyone on her behalf. The operation subsequently took place.

Two years later, and after her marriage, the girl discovered that she had been sterilized. She brought action for damages against the judge claiming deprivation of her constitutional rights. The Supreme Court in a five to three decision held that the judge was absolutely immune from court action under the doctrine of judicial immunity. The doctrine of judicial immunity is broad. It is a necessity for a strong and independence judiciary. The judicial act requirement of judicial immunity is a basic tenet of the doctrine.

Judicial immunity is a common law concept, derived from judicial decisions. In the case of G.B.M. Kariuki vs Hon. Fred Kwasi Apaloo[7]the Court of Appeal correctly held that the Common Law of England, which is applicable in Kenya by virtue of Section 3 (1) of the Judicature Act as set out Andersoin vs Gorrie[8]was the law applicable in Kenya. I stand guided by the said decision.

The description of who the second Respondent is in this Petition clearly appearing in paragraph 1a of the amended Petition clearly leaves no doubt as to why the magistrate in question has been sued. At the risk of repeating myself, I reproduce below the offending paragraph. It reads:-

“The 2nd Respondent is the Court Handling the Petitioner’s Divorce Cause No. 9 of 2014 presided over by Hon. J. Aringo Resident Magistrate who delivered his ruling on 14. 2.2014 and latter (sic) issued consequent orders on 20. 2.2014 in breach of the Petitioners fundamental constitutional and statutory rights hence the Petition”

The above description leaves no doubt as to who the second Respondent is and worse still provides details as why the second Respondent has been sued. It’s very clear that he is being sued as the magistrate who issued the court orders in question. My conclusion is that he is being sued for performing his judicial duties. My conclusion would have been different if it was alleged that he was being sued for acts performed outside his judicial functions or outside the immunity guaranteed under the law. On account of this, the preliminary objection must succeed.

Having been named and described in the above cited paragraph in the Petition the learned Magistrate swore the affidavit dated 31. 8.2015 and filed in court on 08. 9.2015 whereby he inter alia cited the immunity under Article 160 (5) of the Constitution and Section 6of the Judicature Act and averred the Petitioner had only chosen this forum to embarrass him. A parallel can be drawn in the above cited case of G.B.M. Kariuki vs Hon. Fred Kwasi Apaloowhere the then Chief Justice of the Republic of Kenya was sued, but he never filed a defence or reply to the pleadings. Instead, a preliminary objection based on judicial immunity was raised successfully. I think owing to the clear provisions of the law on the issue of judicial immunity, it was not necessary for the learned Magistrate to embarrass himself by filing a replying affidavit because the shield of judicial immunity was sufficient to exonerate him as I hereby find.

The other important issue to note (though this was not argued before me) is that the first Respondent is a private citizen who has been battling with the Petitioner in the lower court. The orders sought are basically reliefs against the state not an individual. The first Respondent can only be named as an interested party. Thus, on account of this anomaly, the Petition is incompetent. Korir J ably captured this point in the case of Republic vs Shadrack Okato[9] relied upon by the Petitioner in his list of authorities where he rendered himself as follows:-

“Before commenting on the above quoted decision, I will bring on board another argument by the interested party related to this issue namely that the application is defective because the Chief Magistrate Milimani Commercial Courts and the Attorney General have not been joined in these proceedings. In support of this argument the interested party cited the decision of R,P.V. Wendoh J in Republic vs Attorney General Another in which she stated that:-

“Another point that was not raised is the fact that the Attorney General was not enjoined to these proceedings as a party. The Resident Magistrate cannot be sued in is own capacity as the applicant purported to because under S. 6 of the Judicature Act,…….. a judicial officer is protected from any civil proceedings for an order done or ordered by him in the discharge of judicial duty. Even though the Resident Magistrate was named in the proceedings, the Attorney General should have been enjoined as the legal representative of Government officers and institutions……. In fact the omission to join the Attorney General to the application renders it fatally defective. I do uphold the third objection that the applicant has not shown the necessary locus standi in the matter and it is basically he did not join the necessary parties to this application……

In his considered judgement, the learned judge continued to find as follows:-

“I agree with Bosire J that judicial officers should not be put in a position which 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 a decision in good faith and without fear that he will be taken to court for making the decision. Whenever a party wants to challenge the decision of a judicial officer by way of a judicial review, he should not make the judicial officer who made the decision a respondent. …

The other issue is whether failure to enjoin the Attorney General renders this application fatally defective. Wendoh J in the already cited case of Republic vs Attorney General & Another was of the view that failure to make the Attorney General one of the Respondents in an application like the one before me would be fatally defective.

Who should be named a respondent in a judicial review application? In Blackstone Chambers’ Administrative Court: Practice and Procedure, the author at page 57 paragraph 361 states that “the defendant will be the public body that has taken the decision complained of or has acted or failed to act in a way that is said to be unlawful. This might be an inferior court or tribunal or any other public body performing public functions”

I find that it was necessary for the Petitioner to name the Attorney General in these proceedings (in addition to naming the public body in question). In any event, Article 156 (2) (b) of the Constitution of the Kenya 2010 provides that“the Attorney General shall represent the national Government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings” while Section 5 (1) (i)of the Office of the Attorney-General Act[10] clearly provides for the functions of the office of the Attorney General among them ‘representing the national government in all civil and constitutional matters in accordance with the Government Proceedings Act.’

In view of my findings above, I find that the Petition as drawn is defective. However, I hold the view that the defect in question can be cured by a proper amendment. However, in his submissions counsel for the Petitioner did not make a request for such a finding and I am not inclined to exercise my discretion in granting an order for amendment when the same has not been sought and the respondents afforded an opportunity to respond to the same.

However, in the interests of fairness and so as not to defeat the ends of justice and in order to afford an opportunity to the Petitioner to have his case investigated by the court and determined on its merits, and guided by the provisions of Article 159 (2), (d) of the Constitution and Section 3A of the Civil Procedure Act,[11] I hereby make the following orders:-

The Petitioners Petition be and is hereby dismissed.

The Petitioner be and is hereby granted leave to file a fresh Petition within 30days from today.

That each party shall bear its costs of this Petition.

Orders accordingly

Dated at Nyeri this 3rdday ofNovember2015

John M. Mativo

Judge

[1] Cap 8, Laws of Kenya

[2] Constitutional Appeal No. 1 of 2003

[3] Constitutional Appeal No. 2/98 (SC)

[4] See Joseph Ramagnoli, “What Constitutes a Judicial Act for Purposes of Judicial Immunity?”, 53 Fordham Law Review 1503 {1985}

[5] Ibid

[6] 435 U.S. 349 {1978}

[7] {1994}eKLR

[8] {1895}1 QB 668

[9] {2012}eKLR

[10]No. 49 of 2012

[11] Cap 21, Laws of Kenya