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Court of AppealDismissedCourt of Appeal at Nairobi (civil appeal from the High Court; exact appeal number not stated in the judgment)

Bellevue Development Company Ltd v Gikonyo & 3 others; Kenya Commercial Bank & 3 others (Interested Parties) (Civil Appeal 239 of 2018) [2018] KECA 330 (KLR)

Court of Appeal of Kenya
21 September 2018
4,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you cannot sue judges personally over their rulings; your remedies are appeal or the judicial removal process, not a lawsuit.

What this practically means

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Executive summary

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Bellevue Development Company Limited appealed against a decision of the High Court (Ochieng, J) striking out its constitutional petition, lodged after a preliminary objection by two sitting High Court judges, Gikonyo and Kariuki, against whom Bellevue had complained of bad-faith rulings in its dispute with Vinayak Builders Limited. The appeal was heard by Kiage, M'Inoti and Waki, JJA. In the lead judgment, Kiage, JA upheld both limbs of the decision below. First, no judge of the High Court possesses supervisory jurisdiction over judges of concurrent or superior status; Article 165(6) confines supervisory jurisdiction to subordinate courts, and a decision purporting to review a court of concurrent jurisdiction is a nullity. Secondly, judicial officers are immunized under Article 160(5) from any action or suit on account of the performance of a judicial function, and the words 'good faith' and 'lawful' do not qualify that immunity, since a judge acting judicially is presumed to act lawfully and in good faith. The Court traced the doctrine from the Star Chamber through Anderson v Gorrie and Bradley v Fisher to Kenyan authority, and held that errors are corrected on appeal, while egregious misconduct or criminality is addressed through the Article 168 removal process, so that immunity does not degenerate into impunity. In a separate concurring judgment, M'Inoti, JA read Article 160(5) as addressing civil liability and held that a judge acting in bad faith is answerable only to the removal mechanism, not to personal suits; Waki, JA concurred briefly. The appeal was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the learned Judge was right in holding that the Judges were immunized from suit under Article 160(5) of the Constitution, and whether the words 'good faith' and 'lawful' qualify that immunity
  2. 2.Whether a judge of the High Court has jurisdiction to enquire into or supervise judges of equal status and concurrent jurisdiction

Key legal issues

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01

Whether judges of concurrent jurisdiction may supervise one another

Holding

They may not; supervisory jurisdiction under Article 165(6) lies only over subordinate courts and over persons, bodies or authorities exercising judicial or quasi-judicial functions, but not over a superior court.

Reasoning

The Court read Article 165(6) literally and relied on its own prior decision in Peter Ng'ang'a Muiruri v Credit Bank Ltd holding that a decision by a court purporting to review decisions of concurrent or superior jurisdiction is a nullity. The proper avenue against a judge's rulings is appeal to a higher court, not a petition before a judge of equal status.

p. 4
02

Whether judicial immunity under Article 160(5) is qualified by lack of good faith or unlawfulness

Holding

The immunity is not qualified; so long as a judge acts in a judicial capacity within his usual jurisdiction, there is a presumption of lawfulness and good faith.

Reasoning

Kiage, JA held that to treat good faith as a qualification would expose judges to an intolerable deluge of litigation and would be absurd. The Court traced the doctrine from the Star Chamber, through Anderson v Gorrie and Bradley v Fisher, to Kenyan High Court authority, and held that errors are corrected on appeal, while egregious misconduct is addressed through the Article 168 removal process.

p. 6
03

Whether a constitutional petition can be used to attack judicial conduct where no particulars of bad faith are pleaded

Holding

No; such a petition is an abuse of process and an improper attempt to circumvent the appellate process.

Reasoning

Both counsel and the Court noted that the appellant pleaded bad faith without supplying particulars. M'Inoti, JA added that a complaint that judges misinterpreted a statute is precisely what the appellate process exists to cure, and that embellishing the complaint with allegations of bad faith cannot alter the constitutionally available remedy.

p. 4

Legal principles established

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  • Judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other; the High Court's supervisory jurisdiction under Article 165(6) extends only to subordinate courts, not to a superior court.
  • Judicial officers are immunized under Article 160(5) from any action or suit on account of the performance of a judicial function; the words 'good faith' and 'lawful' do not qualify that immunity.
  • A litigant cannot re-agitate a decided issue through a constitutional petition before a court of concurrent jurisdiction; the proper devices are appeal or review.
  • Where a judge acts in bad faith, the constitutional remedy is the removal mechanism under Article 168, not a personal action or suit against the judge; for mere errors, the remedy is appeal.

Court orders

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  1. 1.The appeal is dismissed with costs

The bench

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

majority

Wrote the judgment

Wrote the lead judgment. Upheld the High Court's striking out of the petition: judges of concurrent jurisdiction have no supervisory power over each other under Article 165(6), and judicial officers enjoy immunity under Article 160(5), the words 'good faith' and 'lawful' not being qualifications of that immunity. Dismissed the appeal with costs.

I find it strangely curious that counsel for the appellants pressed on with the plea in intrepid fashion even when it was rather obvious that absent any authority to the contrary, the weight of all learning and judicial pronouncements presented is for the upholding of judicial immunity.p. 7
concurring

Wrote the judgment

Wrote a separate concurring judgment agreeing with Kiage, JA. Read Article 160(5) as addressing civil liability; held that a judge acting in bad faith is not protected from the removal mechanism under Article 168, but the remedy for a mere misinterpretation of statute is appeal, not a personal suit against the judge.

I would accordingly read Article 160(5) to be saying that judicial immunity is not available to a judge who acts in bad faith or omits to act in good faith in the lawful performance of his or her judicial function when he is subjected to the appropriate mechanism prescribed by the Constitution.p. 8
concurring

Briefly concurred with the reasoning and conclusion of Kiage, JA, adding nothing substantive.

I respectfully agree with the reasoning and conclusion reached by Kiage, JA and have nothing useful to add. The final orders shall be that the appeal is dismissed with costs.p. 8
On appeal from
High Court of Kenya
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution, hearing an appeal against a High Court decision striking out a constitutional petition

Relief refused

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The appellant's plea that judicial immunity under Article 160(5) is qualified by lack of good faith, and that the petition against the Judges should proceed

Judicial immunity is not qualified by the words 'good faith' and 'lawful'; no particulars of bad faith were pleaded; the proper remedies are appeal and, for egregious misconduct, the removal process under Article 168

p. 6

Costs

The appeal was dismissed with costs to the respondents (the judgment orders that the appeal be dismissed with costs; no order that each party bear their own costs).

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.

Ultimately, I find this appeal devoid of merit and would order that it be dismissed with costs.
p. 7Final orders - dismissal of the appeal with costs
The final orders shall be that the appeal is dismissed with costs.
p. 8Final orders as pronounced by Waki, JA
In our system of courts, which is hierarchical in nature, judges of concurrent jurisdiction do not possess supervisory jurisdiction over each other.
p. 3No supervisory jurisdiction between judges of concurrent jurisdiction
I have no dificulty whatsoever in holding that judicial oficers are under Article 160(5) immunized from any action or suit on account of their performance of a judicial function.
p. 6Scope of judicial immunity under Article 160(5)
They ensure that judicial immunity, which is laudable and necessary for the protection of judicial independence does not morph into judicial impunity or some form of Frankenstenian tyranny against the law and the people.
p. 6Safeguards against judicial impunity - appeal and Article 168 removal

Issues in the judgment

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minor

The judgment renders the year of Bradley v Fisher as 1972, although the passage describes the U.S. Supreme Court decision as having been delivered in 1872, an apparent internal inconsistency in the citation.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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; Kenya Commercial Bank & 3 others (Interested Parties) (Civil Appeal 239 of 2018) [2018] KECA 330 (KLR)", Case Analysis (2018). Court of Appeal at Nairobi (civil appeal from the High Court; exact appeal number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/330/eng@2018-09-21

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