[2020] KEELC 3192 (KLR)
The court found that the inclusion of Honourable Tito Gesora as a respondent in the petition was untenable because his actions were undertaken in his capacity as a judicial officer performing judicial functions. Article 160(5) of the Constitution provides immunity to judicial officers for acts done in good faith in...
Source-derived case information.
- Citation
- [2020] KEELC 3192 (KLR)
- Parties
- Applicant: Samuel K. Ngerechi; Applicant: Richard K. Bosek; Applicant: Wilson K. Sang; Applicant: Joseph Mosonik; Respondent: Hon. T. Gesora, Senior Principal Magistrate Narok; Respondent: Hon. Attorney General of Kenya; Appellant: Joseph Kipkoech Ngerechi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 3 of 2019
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection upheld; 1st respondent struck out
- Judges
- MN Kullow
- Legal Topics
- Judicial Immunity, Right to Fair Hearing, Right to Property, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel K. Ngerechi
Applicant
Richard K. Bosek
Applicant
Wilson K. Sang
Applicant
Joseph Mosonik
Applicant
Hon. T. Gesora, Senior Principal Magistrate Narok
Respondent
Hon. Attorney General of Kenya
Respondent
Joseph Kipkoech Ngerechi
Appellant
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the inclusion of a judicial officer as a respondent in a constitutional petition offends Article 160(5) of the Constitution of Kenya.
- 2 Whether the judicial officer is protected from liability for actions done in good faith in the performance of judicial functions.
- 3 Whether the petition is competent as framed against the 1st respondent.
Ratio Decidendi
The court found that the inclusion of Honourable Tito Gesora as a respondent in the petition was untenable because his actions were undertaken in his capacity as a judicial officer performing judicial functions. Article 160(5) of the Constitution provides immunity to judicial officers for acts done in good faith in the performance of their duties. The court held that the petition, as framed against the 1st respondent, offended this constitutional protection. Consequently, the preliminary objection was merited, and the name of Honourable Mr. Tito Gesora was ordered to be expunged from the proceedings.
Court Disposition
preliminary objection upheld; 1st respondent struck out
Orders
- The name of Honourable Mr. Tito Gesora as the 1st Respondent is expunged from the petition.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NAROK
CONSTITUTIONAL PET NO. 3 OF 2019
IN THE MATTER OF THE CONSTITUTION OF KENYA ARTICLE 22 RELATING TO THE VIOLATION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 50(1)
(FAIR HEARING), 48(ACCESS OF JUSTICE), 40(PROTECTION OF RIGHT TO PROPERTY) AND 27 (1)
AND
IN THE MATTER OF THE SUPERVISORY JURISDICTION OF THE HIGH COURT UNDER ARTICLE 165 (6AND 7) OF THE CONSTITUTION OVER SUBORDINATE COURT OR ANY PERSON EXERCISING JUDICIAL FUNCTIONS
IN THE MATTER OF DENIAL OF ENJOYMENT OF THE FRUITS OF THE JUDGMENT DELIVERED ON THE 28TH APRIL 2015 IN THE DEFENDANTS FAVOUR IN NAROK CMCC NO. 1 OF 2007
AND
IN THE MATTER OF EVICTION ORDERS ISSUED BY THE SENIOR PRINCIPAL MAGISTRATE AGAINST THE SUCCESSFUL PARTY IN NAROK CMCC NO. 1 OF 2007
SAMUEL K. NGERECHI.......................................................1ST PETITIONER
RICHARD K. BOSEK….......................................................2ND PETITIONER
WILSON K. SANG.................................................................3RD PETITIOENR
JOSEPH MOSONIK…..........................................................4TH PETITIONER
VERSUS
SENIOR PRINCIPAL MAGISTRATE NAROK
HON. T. GESORA..................................................................1ST RESPONDENT
HON. ATTORNEY GENERAL OF KENYA.....................2ND RESPONDENT
JOSEPH KIPKOECH NGERECHI................................INTERESTED PARTY
RULING
The 2nd Interested party had by a Notice of Preliminary Objection dated 4th March, 2019 raised the Petition offends the provision of Article 160 (5) of the Constitution of Kenya 2010 as a member or a Judicial Officer is not liable for action or in a suit in respect of anything done or omitted to be in good faith in the performance of his judicial functions and thus the petition is grossly incompetent and an abuse of the court process.
The petitioners answer to the petition and in his submission states that the petition is properly before the court and thus Honourable Tito Gesora is not individually sued but cited as the Senior Principal Magistrate Narok who made the disputed order for eviction and that there is no specific prayer in the petition of the Magistrate to incur personal liability or an order to be made against him. The petitioner further submitted that judicial officers are not above and are bound by the provisions of Article 20 (1).
I have considered the Notice of Preliminary Objection and the submissions filed by the petitioners together with the petition. What constitutes a preliminary objection is now well settled as contained in the case of Mukisa Biscuits Manufacturing Limited -Versus- West end Distributors Limited (1969) as a pecuniary point which when acquired will dispose of the matter.
The preliminary objection on point raised by the 1st Respondent is to effect that the same offends the provisions of Article 160 (5) of the Constitution of Kenya 2010 in so far as a member of the judiciary or Judicial Officer in the performance of his duties shall not be liable in any suit. From the petition and the submissions, it is clear that the Honourable Tito Gesora was only included as a party to the petition pursuant to orders he had issued and the taking of proceedings before his court. Matter which he undertook in pursuance of the function of his office as a judicial officer and in lieu of the above I find that the function of the 1st respondent is only protected under the provisions of Article 160 (1) of the Constitution of Kenya and therefore his inclusion as respondent in the petition is untenable.
From the above I find that the preliminary objection is merited and I thus direct the name of Honourable Mr. Tito Gesora as the 1st Respondent be expunged.
Orders accordingly.
DATED, SIGNED and DELIVERED in open court atNAROKon this 5TH day of MARCH, 2020
Mohammed Kullow
Judge
5/3/2020
In the presence of:-
CA:Chuma/Kimiriny
Mr Kamwaro for the 1st respondent
Ms Maritim for the interested party
N/A for the petitioners
Mohammed Kullow
Judge
5/3/2020