Reverend Pauk K. Mutunga & another v Attorney General & 8 others [2020] KEELC 1168 (KLR)
The bottom line
#A Malindi court dismissed a church's petition, confirming that magistrates and court bailiffs are immune from being sued for carrying out lawful court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether suing a magistrate and court bailiff over orders issued and executed in their official capacities is sustainable
Unsustainable; the Petition against the 5th and 6th Respondents is an affront to judicial immunity and was struck out
The court found the 5th and 6th Respondents acted in the course of their official duties executing orders in Malindi CMCC Land Case No. 5 of 2018. Section 6 of the Judicature Act and Article 160(5) of the Constitution protect judicial officers and those executing lawful process from civil suits. The Petitioners had not appealed or sought review of the orders, so the grievance lay in appeal, not a personal suit.
Whether the ex parte issuance of the 2nd April 2019 orders rendered them unconstitutional
No; ex parte issuance does not ipso facto render orders unconstitutional
The court noted that valid injunction orders issued on 13th April 2018 and confirmed on 25th April 2018 were already in force against the Petitioners, who neither set aside nor varied them. The Petitioners offered no evidence that the 5th and 6th Respondents acted other than as officers of the court in execution of their duties.
Whether the Petitioners were entitled to an order compelling disclosure of the identities of persons who executed the orders
No; no prior request for information under the Access to Information Act, 2016 had been made and refused
Article 35 guarantees access to state-held information but the Act requires a written request with sufficient particulars. The Petitioners produced no evidence of a request made to the named Respondents or of a refusal, so there was no basis to compel production of the list sought.
Legal principles established
#- Judicial officers are immune from being sued in civil proceedings for acts done in good faith in the lawful performance of judicial functions, per Article 160(5) of the Constitution and Section 6 of the Judicature Act
- Court process servers and bailiffs executing lawful warrants or orders of a court are likewise immune from suit for such execution
- The proper remedy against a judicial officer's orders is appeal or review, not a personal suit against the officer
- Information held by the State is accessible under Article 35 only upon a written request under Section 8 of the Access to Information Act, 2016, and compulsion requires proof of a refused request
Court orders
#- 1.The Petition against the 5th and 6th Respondents is struck out as an affront to judicial immunity
- 2.The Notice of Motion dated 24th June 2019 is dismissed with costs
- Jurisdiction invoked
- Original constitutional petition jurisdiction; judicial review and Article 35 Access to Information invoked; Article 160(5) and Section 6 of the Judicature Act on judicial immunity
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reverend Pauk K. Mutunga & another v Attorney General & 8 others [2020] KEELC 1168 (KLR)", Case Analysis (2020). Petition dated 24th June 2019 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1168/eng@2020-10-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.