Benjamin Barasa Wafula v Attorney General & 6 others [2019] KEELC 555 (KLR)
The bottom line
#A Kenyan court struck out a suit blaming lawyers and other parties for a judge's ruling, confirming appeals and review are the only remedies against court decisions.
What this practically means
#Executive summary
#Key legal issues
#Abuse of court process
The Originating Summons was an abuse of process because its true purpose was to challenge the ruling of Ali-Aroni J of 28th July 2016, against which the proper remedy was appeal or review
The court traced the genesis of the suit to the ruling dismissing the plaintiff's application to be enjoined in the Bungoma Succession Cause on the strength of a Power of Attorney. Instead of appealing, the plaintiff sued the defendants, including the opposing counsel, blaming them for the judge's decision. The court held this was improper, calculated to annoy, harass and vex, and struck out the suit as an abuse of process.
Liability for judicial decisions
No party to litigation can be held liable for a decision made by the court; the decision to allow or deny participation lay with the judge alone
The court accepted the defendants' averments that the decision to deny the plaintiff participation in the succession proceedings was made by the court, not by them. Counsel were merely agents discharging their mandate. The court invoked Article 160(1) on judicial independence - the judiciary is subject only to the Constitution and the law, not to the control or direction of any person or authority.
Power of Attorney and right to litigate in person
The plaintiff's contention that his Power of Attorney was equivalent to ownership and entitled him to conduct litigation without an advocate had already been rejected in the succession ruling
Ali-Aroni J, citing Theuri v R, had held that a Power of Attorney does not permit its holder to draw legal documents, issue summons, appear in court and represent a party contrary to the Advocates Act. The present court did not revisit that holding but treated the plaintiff's grievances as an impermissible collateral attack on it.
Legal principles established
#- A litigant cannot hold parties liable for a judicial decision made by a court in the discharge of its judicial functions; the remedy against such a decision is appeal or review
- Article 50(1) of the Constitution is not a carte blanche for filing claims that abuse the process of the court; courts have inherent jurisdiction to strike out such claims
Court orders
#- 1.The plaintiff's amended Originating Summons dated 5th July 2017 is dismissed with costs to the 1st, 2nd, 4th, 5th and 7th defendants
- Jurisdiction invoked
- Article 50(1) of the Constitution - right of access to court for dispute resolution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Barasa Wafula v Attorney General & 6 others [2019] KEELC 555 (KLR)", Case Analysis (2019). Amended Originating Summons dated 5th July 2017 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/555/eng@2019-11-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.