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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 849 (KLR)

Republic v Resident Magistrate - Honourable LG Ruhu Mwingi Law Courts & 2 others; Officer Commanding Police Station Mwingi Police Station & another (Interested Parties); Kalungu (Exparte Applicant) (Judicial Review E008 of 2022) [2025] KEELC 849 (KLR)

High Court of Kenya
27 February 2025
LKL. G. Kimani
3,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's High Court ruled that a magistrate cannot be personally ordered to pay legal costs for acting in their judicial capacity.

What this practically means

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Executive summary

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The 1st and 3rd Respondents in the substantive judicial review proceedings — the Resident Magistrate, Mwingi Law Courts (Hon. I.G Ruhu) and the Attorney General — moved this Court by a Notice of Motion dated 28th March 2024 under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. They sought a review of the judgment of 8th March 2023, in which the Court had granted the ex parte applicant orders of certiorari and prohibition quashing the magistrate's orders of 16th June 2022 and awarded costs against all respondents, plus a stay of execution of the costs order. The Applicants contended that the magistrate was protected by Article 160(5) of the Constitution and Section 6 of the Judicature Act, and that the Attorney General had only been joined to oversee enforcement, so neither should have been condemned to pay costs. The ex parte applicant opposed, arguing the court was functus officio, the suit lay against the Attorney General under the Government Proceedings Act and not the magistrate personally, there was inordinate delay, and the alleged errors were matters of law for appeal. The Court held that judicial immunity is absolute for good-faith judicial functions and that condemning both Applicants to costs was an error apparent on the face of the record under the Muyodi and Ndungu Njau standards. Allowing the application in part, the Court reviewed the judgment only to the extent of the costs order, set it aside, and substituted an order that there be no order as to costs of the suit, and made no order as to costs of the application.

Key legal issues

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01

Whether the award of costs against a judicial officer and the Attorney General was an error apparent on the face of the record justifying review

Holding

Yes. Awarding costs against the 1st Applicant, a magistrate protected by Article 160(5) and Section 6 of the Judicature Act, and against the 2nd Applicant who was joined only to oversee enforcement, was an error apparent on the face of the record.

Reasoning

The court applied Section 80 CPA and Order 45 and the Muyodi and National Bank v Ndungu Njau tests for error apparent. It held judicial immunity absolute for good-faith judicial functions, and that the Attorney General was joined only for representation and enforcement, so neither should be condemned to pay costs. The error was self-evident, requiring no elaborate argument, hence reviewable.

p. 8
02

Whether the Applicants were entitled to a stay of execution

Holding

Effectively rendered moot by the review, which set aside the costs order and substituted no order as to costs; no separate stay order was granted.

Reasoning

Although stay was sought pending review, the court allowed the review itself and replaced the costs order, so no live execution remained. The final orders contain no stay.

p. 8

Legal principles established

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  • A judicial officer acting in good faith in the lawful performance of a judicial function enjoys absolute immunity from liability, including an award of costs against him personally.
  • An error apparent on the face of the record exists where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions.

Court orders

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  1. 1.The judgment of the court dated 8th March 2023 be and is hereby reviewed and set aside only to the extent of order number 3 on the award of costs to the ex parte applicant against the Respondents
  2. 2.The said order shall be replaced by an order that there shall be no order as to costs of the suit
  3. 3.There shall be no order as to costs of this application

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 160(5)
  • Civil Procedure Act CAP 21Section 80; Section 27
  • Civil Procedure Rules, 2010Order 45 Rule 1
  • Civil Procedure Act CAP 21Sections 1A and 1B (overriding objective)
  • Judicature Act CAP 8 Laws of KenyaSection 6
  • Government Proceedings Act CAP 40Sections 4, 17 and 21
  • Judicial Service Code of Conduct and EthicsNot specified

Cases cited (11)

  • Muyodi v Industrial and Commercial Development Corporation & another
    (2006) 1 EA 243
  • Samuel K. Ngerechi & 3 others v Senior Principal Magistrate Narok T. Gesora & another; Joseph Kipkoech Ngerechi (Interested Party)
    [2020] eKLR
  • Maina Gitonga v Catherine Nyawira Maina & Another
    [2015] eKLR
  • James Wangalwa & another v Agnes Naliaka Cheseto
    [2012] eKLR
  • Executive Committee Chelimo Plot Owners Welfare Group & 288 others v Langat Joel & 4 others (sued as the Management Committee of Chelimo Squatters)
    [2018] eKLR
  • Stephen Gathua Kimani v Wanjira Waruingi t/a Providence auctioneers
    [2016] eKLR
  • Peter Mwangi Macharia v Alphaxard Warotho Komu & 2 others
    [2019] eKLR
  • Francis Njoroge v Stephen Maina Kamore
    [2018] eKLR
  • National Bank Of Kenya Limited v Ndungu Njau
    [1997] eKLR
  • Nyamogo and Nyamogo v Kogo
    [2001] EA 174
  • Bellevue Development Company Ltd v Francis Gikonyo & 7 Others
    [2018] eKLR
Jurisdiction invoked
Section 80 of the Civil Procedure Act CAP 21 and Order 45 of the Civil Procedure Rules, 2010 (review of judgment); Article 160(5) of the Constitution

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, "Republic v Resident Magistrate - Honourable LG Ruhu Mwingi Law Courts & 2 others; Officer Commanding Police Station Mwingi Police Station & another (Interested Parties); Kalungu (Exparte Applicant) (Judicial Review E008 of 2022) [2025] KEELC 849 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/849/eng@2025-02-27

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