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ELCDismissedPetition No. 4 of 2017· [2018] KEELC 2148 (KLR)

Dewdrop Enterprises Limited James Irungu Wakaba & another [2018] KEELC 2148 (KLR)

Environment and Land Court
26 June 2018
KBK. BOR
1,054 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a landlord's petition against a magistrate, confirming you cannot sue a judge over a ruling you dislike—you must appeal or seek review.

What this practically means

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Executive summary

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The Petitioner, Dewdrop Enterprises Limited, a landlord, brought a constitutional petition before the Environment and Land Court at Nairobi against its tenant, James Irungu Wakaba, and the Chief Magistrates Court, Milimani. The dispute arose from a tenancy over House No. 26A on L.R. No. 209/10548 South C Mugoya, Nairobi, entered into in March 2013. The Petitioner alleged the tenant breached the tenancy by non-payment of rent, instructed auctioneers to levy distress, and was met with orders of 23/8/2013 barring eviction and a ruling of 6/12/2013 granting an injunction against distress issued in Milimani CMCCC No. 5083 of 2013. The Petitioner sought declarations that those orders breached its rights under Articles 27, 28, 36, 40 and 50, orders of certiorari to quash them, prohibition against continuance of the lower court suit, mandamus to compel supply of a certified copy of the order, damages of Kshs. 6,000,002.00 with interest at Kshs. 2,000 per week, and costs. The 1st Respondent admitted most facts but denied owing rent, claiming his deposit of Kshs. 126,000 was being held. The 2nd Respondent filed Grounds of Opposition, contending the petition was an abuse of process, sub judice, and disclosed no cause of action against it; both Respondents also challenged the court's jurisdiction. The court held that Section 6 of the Judicature Act protects judicial officers sued for acts done in good faith in discharge of judicial duty, that joining the judicial officer was improper, that the Petitioner's existing appeal (HCCA No. 631/2013) and a possible counterclaim in the lower court were the proper remedies, and that the petition was an abuse of court process. The petition was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the petition discloses a cause of action against the 2nd Respondent (the Magistrates' Court)

Holding

The petition discloses no cause of action against the judicial officer/court; judicial immunity applies

Reasoning

The court relied on Section 6 of the Judicature Act protecting judicial officers acting in good faith. A party aggrieved by a court order must pursue appeal, review or setting aside rather than suing the judicial officer. Making the judicial officer a party to the underlying dispute is improper.

p. 2
02

Whether the petition constitutes an abuse of court process given the pending appeal (HCCA No. 631/2013) and the pending lower court suit

Holding

The petition is an abuse of process; the Petitioner should pursue its appeal and any counterclaim in the lower court

Reasoning

The Petitioner had already lodged an appeal against the very orders it sought to quash by petition. The 1st Respondent was not served with that appeal. The proper avenues are pursuing the appeal and filing a counterclaim in the pending lower court suit, not a parallel constitutional petition.

p. 2

Legal principles established

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  • A judge or magistrate is protected from being sued in a civil suit for acts done in discharge of judicial duty in good faith under Section 6 of the Judicature Act
  • It is improper to join a judicial officer as a party to proceedings concerning the dispute they adjudicated; the proper remedy is appeal, review or setting aside

Court orders

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  1. 1.The petition is dismissed with costs to the Respondents.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 3, 10, 22, 60, 159, 258, 27, 28, 35, 36, 40, 46, 48 and 50
  • Judicature ActSection 6
Jurisdiction invoked
Articles 2, 3, 10, 22, 60, 159 and 258 of the Constitution of Kenya 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Dewdrop Enterprises Limited James Irungu Wakaba & another [2018] KEELC 2148 (KLR)", Case Analysis (2018). Petition No. 4 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2148/eng@2018-06-26

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