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Supreme CourtDismissedPetition 42 of 2018

Bellevue Development Company Ltd v Gikonyo & 3 others

Supreme Court of Kenya
15 May 2020
David Kenani MaragaD. K. MaragaPhilomena Mbete MwiluP. M. MwiluMohammed Khadhar IbrahimM. K. IbrahimSmokin Charles WanjalaS. C. WanjalaIsaac LenaolaI. Lenaola
8,897 words in judgment
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AI-assisted case brief
·~36 min to read original · ~4 min brief

The bottom line

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Judges are absolutely immune from civil suits for acts done in their judicial role.

What this practically means

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The Supreme Court ruled that judges cannot be sued for decisions they make while acting as judges. This immunity is absolute, meaning it applies even if the judge made a mistake, as long as they were acting within their role. If you believe a judge acted dishonestly or illegally, your only option is to file a complaint with the Judicial Service Commission, not a lawsuit against the judge personally.

Executive summary

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The petitioner, Bellevue Development Company Limited, appealed to the Supreme Court against the Court of Appeal's decision which had dismissed its appeal against the High Court. The dispute arose from an arbitration contract where the petitioner challenged the appointment of a substitute arbitrator and the decisions of two High Court judges (Gikonyo J and Kariuki J) who had allowed the arbitration to proceed. The petitioner filed a constitutional petition alleging violation of its rights under articles 27(1), 40 and 50(1) of the Constitution, and sought declarations that judicial immunity under article 160(5) is not absolute and that the judges acted in bad faith. The Supreme Court unanimously dismissed the petition. The Court held that judicial immunity under article 160(5) is absolute for acts done in good faith and in the lawful performance of judicial functions, with a presumption that a judge acting in judicial capacity acts lawfully and in good faith. The Court further held that the remedy for a litigant alleging misconduct by a judge lies in a petition to the Judicial Service Commission under article 168 of the Constitution, not in a civil suit against the judge. The Court found no evidence that the judges acted in bad faith or without jurisdiction, and noted that the petitioner had abandoned its appeal and instead pursued an unorthodox path of suing the judges personally. The petitioner was ordered to bear costs of all respondents in both the Supreme Court and the courts below.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether judicial immunity under article 160(5) of the Constitution is absolute
  2. 2.What recourse is available to a party aggrieved by an unlawful act or omission of a judicial officer

Key legal issues

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01

Whether judicial immunity under article 160(5) of the Constitution is absolute

Holding

Judicial immunity is absolute for acts done in good faith and in the lawful performance of judicial functions. The words 'good faith' and 'lawful' are not qualifications or limitations of the immunity; there is a presumption that a judge acting in judicial capacity acts lawfully and in good faith.

Reasoning

The Court analyzed article 160(5) which grants immunity for acts done in good faith in lawful performance of judicial functions. It adopted the two-tiered test from Stump v Sparkman: whether the acts were judicial acts and whether they were performed in judicial capacity. The Court held that so long as a judge acts in judicial capacity and within usual jurisdiction, there is a commonsensical presumption of lawfulness and good faith. The immunity is absolute even when the judge acts in excess of jurisdiction, except in cases of clear and deliberate usurpation of jurisdiction where none exists.

p. 19
02

What recourse is available to a party aggrieved by an unlawful act or omission of a judicial officer

Holding

The remedy for a litigant alleging fraud, dishonesty or perversity by a judge lies in a petition to the Judicial Service Commission for removal under article 168 of the Constitution, not in a civil suit against the judge.

Reasoning

The Court held that article 168 provides an elaborate procedure for removal of judges, including a fair hearing before the Commission and a tribunal. A suit directly against a judge for alleged misconduct was never the expectation of the drafters of the Constitution. The Court endorsed the Court of Appeal's view that appellate mechanisms suffice for ordinary errors, and removal mechanisms exist for egregious illegalities or criminality.

p. 21

Legal principles established

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  • Judicial immunity under Article 160(5) is absolute for acts done in good faith and in lawful performance of judicial functions.
  • A judge is presumed to act lawfully and in good faith when performing judicial duties.
  • A litigant alleging judicial misconduct must petition the Judicial Service Commission under Article 168, not file a civil suit.
  • The High Court cannot supervise judges of concurrent jurisdiction under Article 165(6).
  • Judicial immunity protects judges even when they act in excess of jurisdiction, unless there is clear and deliberate usurpation of power.

Court orders

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  1. 1.The Petition is hereby dismissed
  2. 2.The petitioner shall bear the costs of all the respondents, both in this court and the Superior Courts below

The bench

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One judgment of the whole court — no separate or dissenting opinions.

David Kenani Maraga
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Mohammed Khadhar Ibrahim
majority
Smokin Charles Wanjala
S. C. WanjalaSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
On appeal from
Court of Appeal at Nairobi
Civil Appeal No 239 of 2017
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Setting aside the Court of Appeal judgment

The Court found the petition lacked merit and that the judges acted within jurisdiction

p. 22

Declaration that judicial immunity is not absolute

The Court held that immunity under article 160(5) is absolute for acts done in good faith and within lawful performance of judicial functions

p. 19

Declaration that the 1st and 2nd respondents violated the petitioner's constitutional rights

The Court found no evidence of bad faith or unlawful conduct by the judges

p. 21

Costs

The petitioner shall bear the costs of all the respondents, both in this court and the Superior Courts below.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We therefore reiterate that immunity of a Judge can only be stripped in our realm, by proceedings through the Judicial Service Commission and not by a civil suit as argued by the petitioner.
p. 21 Remedy for judicial misconduct is through JSC, not civil suit
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.
p. 19 Presumption of good faith when judge acts in judicial capacity
article 160(5) draws the line between immunity and impunity; the line crosses where acting lawfully and in good faith meets willful and negligent abandonment of the oath of office
p. 17 Distinction between judicial immunity and impunity

Key timeline

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2020
Supreme Court dismisses Bellevue Development Company's petition, affirming judicial immunity is absolute.
Earlier
Petitioner challenged appointment of substitute arbitrator and decisions of two High Court judges.
Earlier
Court of Appeal dismissed petitioner's appeal against High Court decisions.
Earlier
Petitioner filed constitutional petition alleging violation of rights and that judges acted in bad faith.

Practical implications

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For lawyers

No civil suits against judges

Do not advise clients to sue judges personally for judicial decisions. The only route for alleged misconduct is a petition to the Judicial Service Commission under Article 168. This ruling closes the door on creative civil claims against judicial officers, so focus on appellate remedies or JSC complaints.

For businesses

Arbitration disputes must follow process

If you are in an arbitration and disagree with a judge's ruling on arbitrator appointments, do not sue the judge. Instead, challenge the decision through the proper appeal channels. This case shows that suing judges personally will be dismissed with costs, wasting time and money.

For individuals

Challenge judge's error, not the judge

If you believe a judge made a wrong decision, appeal it through the courts. Do not file a lawsuit against the judge. The Supreme Court says judges are immune from such suits. Your remedy is to complain to the Judicial Service Commission if you think the judge acted dishonestly or illegally.

Frequently asked questions

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Can I sue a judge in Kenya for making a wrong decision?+

No. The Supreme Court ruled that judges are absolutely immune from civil suits for acts done in their judicial role. If you think a judge acted dishonestly or illegally, you must file a complaint with the Judicial Service Commission under Article 168 of the Constitution.

What is judicial immunity under Article 160(5) of the Kenyan Constitution?+

Judicial immunity means a judge cannot be sued for decisions made while acting as a judge. The Supreme Court confirmed this immunity is absolute, as long as the judge acted in good faith and within their lawful role. There is a presumption that judges act lawfully.

How do I challenge a judge's decision in Kenya if I cannot sue them?+

You can appeal the judge's decision to a higher court. If you believe the judge acted with fraud or dishonesty, you must petition the Judicial Service Commission for their removal under Article 168. A civil suit against the judge is not allowed.

What happened in Bellevue Development Company v Vinayak Builders in Kenya?+

The Supreme Court dismissed a petition from Bellevue Development Company that tried to sue two High Court judges for allowing an arbitration to proceed. The Court ruled that judges are immune from such suits, and the proper remedy is a complaint to the Judicial Service Commission.

Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bellevue Development Company Ltd v Gikonyo & 3 others", Case Analysis (2020). Petition 42 of 2018. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2020/43/eng@2020-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.