I. Introduction
1. The Honourable Court was called upon to make a determination over two ( 2 ) pleadings being – the Notice of Motion application dated 28 th June 2025 filed by ENG. ISAIAH KIRINDI WAMBUGU MUTONYI, the Applicant herein. The second is a Notice of Preliminary Objection dated 14 th October 2025 raised by МОНАМMED YUSUF MWALIM KILUNGU, FATUMA SAIDI MABRUKU and RETAW HOLDINGS LIMITED, the 1 st , 5 th and 6 th Respondents herein respectively. The application notice of motion was filed pursuant to the provisions of Article 2 (4), 29, 30 and 165 (6) and (7) of the Constitution, Order 22 Rules 31 to 34 and Order 51 Rules 1-3 of the Civil Procedure Rules, 2010.
2. The application was opposed by a notice of preliminary objection
3. Upon service, the 5 th and 6 th Respondents also opposed the application vide a Replying Affidavits both dated 5 th December, 2025.
II. The case by the Applicant
4. The applicant sought for the following orders before court; -
a) Spent.
b) Spent.
c) That this honourable court be pleased to call for the record of the proceedings before:-
a. First, the Land Dispute case number 004 of 2009; Athumani Yusuf Haji – Versus - Isaiah Kirindi Wambugu Mutonyi.
b. Secondly, the Kwale Principal Magistrates Court Land Case Number 36 of 2009 - Athumani Yusuf Haji Versus Isaiah Kirindi Wambugu Mutonyi
c. Thirdly, Kadhis Court Kwale Succession Cause Number E168 of 2021; in the matter of the estate of Athumani Yusuf Haji.
For purposes of determining the legality of the proceedings in each of them in which the subject matter was Kwale/Funzi Island/96 registered in the name of the applicant on 27 th November, 1992 but the registration as proprietor was purportedly cancelled pursuant to a Judgement/award of the Kwale Land Disputes Tribunal and the title reverted to the Vendor - Athumani Yusuf Haji in 2009 and upon his death in the year 2016 was purportedly inherited by the 5 th Respondent who purportedly sold it to the 6 th Respondent in July, 2021 thereby completing a process of divestment of title through a callus abuse of the court process.
d) That this Honourable Court be pleased to supervise the said proceedings in the three courts, determine the legality of each proceeding and set aside the orders made and revert the title to the applicant by setting aside all entries made in the land register after 27 th November, 1992.
e) That this Honourable Court be pleased to declare that the proceedings instituted in land dispute case number 004 of 2009; Athumani Yusuf Haji - Versus - Isaiah Kirindi Wambugu Mutonyi are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.
f) That this Honourable Court be pleased to declare that the proceedings instituted in Kwale Principal Magistrates Court Land Case Number 36 of 2009 Athumani Yusuf Haji – Versus - Isaiah Kirindi Wambugu Mutonyi are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.
g) That this Honourable Court be pleased to declare that the proceedings instituted in Kwale Succession Cause Number E168 of 2021; in the matter of the estate of Athumani Yusuf Haji are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the Vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.
h) That this Honourable Court be pleased to restrain the 6 th Respondent whether by itself or servants from entering into or being on Kwale/Funzi Island/96 pending the hearing and determination of the suit.
i) That this Honourable Court be pleased to restrain the 6 th Respondent from selling, charging and/or alienating the said Kwale/Funzi Island/96 pending the hearing and determination of this suit.
j) That this Honourable Court be pleased to restrain the 6 th Respondent from selling, charging and/or alienating the said Kwale/Funzi Island/96 pending the hearing and determination of this suit.
k) That this Honourable Court be pleased to declare that the 7 th Respondent has contravened his statutory duties under Sections 9 to 12 of the Land Registration Act 2012.
l) That this Honourable Court be pleased to declare that the predecessor of the 7 th Respondent contravened his statutory duties under sections 7 and 8 of the repealed Registered Land Act.
m) That this Honourable Court be pleased to declare that the applicant is the registered proprietor of Kwale/Funzi Island/96 and that all entries in the register of the same made since 27 th November, 1992 are null and void and are for expunging from the same.
n) That this Honourable Court be pleased to issue a permanent injunction restraining the 6 th Respondent whether by itself or servants from entering into, being on or in any way dealing with Kwale/Funzi Island/96.
o) That costs of this application be provided for.
5. The application was premised on grounds, testimonial facts and the averments made out by a set of three ( 3 ) affidavits separately sworn by MAAMUNI HAJI TUNDA, ISAAC GATHUNGU WANJOHI and lastly one by MOHAMED BAKARI.
6. The 1 st Supporting Affidavit sworn Mr. Maamuni Haji Tunda
a) Mr. Maamuni Haji Tunda swore a 64 Paragraphed Supporting Affidavit dated 28 th June, 2025 together with annextures marked as “MHT) annexed thereto.
b) He was born in Funzi Island and had many relatives there. He had always visited Funzi Island often.
c) The 1 st Respondent was a son of his first Cousin, Yusuf Mwalim while the 2 nd Respondent was a retired School teacher. He did not know whether he served as a member of Kwale Land Dispute Tribunal.
d) The 3 rd Respondent was a member of Nyumba Kumbi in Msambweni Location. The 4 th Respondent was a retired school teacher who resided at Msambweni and assisted the Chief and the DO in matters concerning administration of the location and division.
e) The 5 th Respondent a farmer and businesswoman who sild fried or cooked fish in Funzi sub – location. She was neither his relative nor that of his late uncle, Athumani Yusuf Haji whose heir she had falsely claimed to be and purported to inherit a property which his late uncle sold to the Applicant in the year 1992.
f) The 6 th Respondent was a private limited liability company which was incorporated under the repealed Companies Act Cap. 486 of the Laws of Kenya on 16 th December, 2013.
g) The 1 st to 6 th Respondents were fraudsters who had been involved in a scheme to deprive the applicant of the suit property which belonged to his late uncle Athumani Yusuf Haji in the year 1992.
h) He knew Eng. Isaac Gathungu Wanjohi and Engineer Isaiah Kirindi Wambugu Mutonyi. The latter was the Applicant herein,
i) That contrary to the false entries made showing that the applicants title had been cancelled, he was the owner of the suit property.
j) The Applicant bought the two parcels on Funzi Island in the year 1992 from the deponent’s father and uncle. Eng. Wanjohi bought parcel Kwale/Funzi Island /110 while Eng. Mutonyi purchased Kwale/Funzi Island/96 from his uncle.
k) The two persons had remained in occupation of the suit properties from the time they were purchased.
l) From the land registry records, there were fraudulent activities on the parcels showing that the applicant was registered as a proprietor of the parcel on 27 th November, 1992 but his name had been cancelled by the 7 th Respondent
m) The deponent stated that he had played a key role in sale of the properties to the Applicant.
n) A grandson of his uncle, Mohammed Yusuf Mwalim alias Kilungu, served as imposter in fraudulent proceedings filed in the Kwale Land Disputes Tribunal with a view to disposing the Applicant of his land and purported to be him who filed a case against the Applicant.
o) During the last years of his life, his uncle, Athumani Yusuf Haji, who was single treated him as his son and he used to ran his errands for him. He served as his confidant and everyone in his extended family including the 1 st Respondent knew that.
p) The 1 st Respondent led a polygamous marriage and lavish life. He instated fraudulent proceedings against his uncle at the Kwale Courts. There was no Power of Attorney given to the 1 st Respondent in the Land Disputes Tribunal and the Principal Magistrates’ Court at Kwale files.
q) The 2 nd and 4 th Respondents who were purported members of Kwale Land Disputes Tribunal both the 1 st Respondent and him, and there was no way they could mistake the 1 st Respondent for him.
r) According to the abstract of title, the 1 st Respondent obtained a fraudulent order which was purportedly used to cancel the registration of the Applicant as proprietor and replace him with that of his uncle on 11 th December, 2009 when he was alife and without his knowledge.
s) He had seen the fraudulent proceedings which were instituted in the Kadhi’s Court at Kwale by the 5 th Respondent in Succession Cause Number E186 of 2021.
t) The 5 th Respondent was not the daughter of his late uncle and according to his customs. He was the one who should have inherited it.
u) From the abstract of the title, the 5 th Respondent was registered as the proprietor on 30 th April, 2021 and on 8 th July, 2021 purported to sell it to the 6 th Respondent.
v) He was advised by his Advocates on record that:-
i. It was a habit of the Land Registrars including the Chief Land registrar to issue fraudulent parallel titles to assist other people to steal land.
ii. The 5 th & 6 th Respondents were holders of fraudulent titles and the practice of the Court was to nullify them.
iii. This Honourable Court had jurisdiction to supervise proceedings of the sub – ordinate Court and nullify them and give such direction as would serve the ends of justice,
iv. In this case, the ends of justice would be served bt cancelling all the fraudulent entries in the land register and leave the Applicant as the proprietor.
v. It was the practice of Court to recommend to the Director of Public Prosecution to cause to be investigated under Article 157 of the Constitution, whether offences had been committed by persons before the Court and prosecution of offenders to take place.
w) The Applicant was an investor in real Estate in the County of Kwale. He owned a number of parcels of land both in Funzi Island and the mainland.
x) Sometimes between 1990 and 1991 he visited Funzi Island and indicated to some acquaintances that he was looking for and to buy, He was friend t a politician in Msambweni known as Councillor Nasoro Juma Mwadzikomba and who served as an agent for looking for people wanting to buy parcels of land.
yz) The Deponent’s father – haji Yusuf - and uncle decided to sell their parcel of land in Funzi Island and communicated their intention to Councillor Nasoro Juma. The Councillor informed them that Engineer Wanjohi was interested in the parcels.
) They all met and undertook the sale transaction process in earnest. However, on conducting search they found there had been some interference on the registration entries. The parcels had been registered in the names of the 5 th and 6 th Respondents.
) The 6 th Respondent had never taken possession of the suit land.
) There was need to have the proceedings of the Kadhi’ Court and Principal Magistrate Court ordering Athumani Yusuf Haji as the owners of the land in 2009 and the 5 th Respondent in 2021 knowing very well the land had been sold to Engineer Mutonyi be brought before this Court.
) The deponent disputes the three cases listed at prayer 3 of the application and states that the same were all forged as his late uncle never participated in the said proceedings.
7. The 2 nd Supporting Affidavit sworn by Engineer Isaac Gathungu Wanjohi.
8. Engineer Isaac Gathungu Wanjohi, in his affidavit dated 28 th June, 2025 in support of the application stated as follows that:-
a) The suit property was amongst several properties he invested in while in Kwale County.
b) In year 1992 he was shown the suit property by the late Counsel Nasoro who introduced him to his two brothers Haji Yusuf and Athumani Yusuf.
c) There was also one Maamuni Tunda who acted as an agent and negotiated the purchase price to the suit property on behalf of the two brothers who were the vendors.
d) The purchase price was agreed upon and the sale effected.
e) Later in the year 2021 he learnt that there was an attempt to open the bargain of the suit property.
f) The bank details were given and the deponent paid the remaining balance of the purchase price being a sum of Kenya Shillings Seventy Thousand (Kshs. 70,000/-) to one Yusuf Haji Maalim a nephew to both vendors.
9. The 3 rd Affidavit by Mohamed Bakari Musa.
10. In his affidavit in support of the application averred as follows that:-
a) the applicant had been known to him for more than 30 years.
b) At paragraph 9 of the affidavit he averred that he had been appointed as a caretaker of the suit property; and
c) The land was owned by the applicants herein.
d) The suit property had not been interfered with until the year 2021 when he met some surveyors on the land.
e) The said surveyors informed him that they were there to undertake some survey work.
f) The 6 th Respondent was not in possession of the suit property.
III. The responses by the 1 st Defendant/Respondent’s
11. The application was opposed through a 59 Paragraphed Replying affidavit dated 5 th December 2025 sworn by Mohamed Yusuf Haji alias Mohamed Yusuf Haji Mwalim Kilungu who averred as follows that:-
a) He was the 1 st Respondent herein and was well conversant with the matters in issue herein and therefore competent to swear this Affidavit.
b) He had had the application and the supporting affidavit read to him. Its contents were vehemently opposed.
c) The contents of the application and the supporting affidavit thereto were false and geared towards dispossessing the 6 th Respondent of the suit property Kwale/Funzi Island/96.
d) The deponent to the affidavit one Mohamed Bakari Musa passed away on the 24 th June, 2025. Attached and marked as “MYM – 2 “ was a copy of the Certificate of Death.
e) Therefore, it was impossible for the deceased to have sworn the affidavit on 28 th June, 2025. It was therefore evident the Applicant had procured a forgery, committed perjury and knowingly uttered a false document in a desperate attempt to mislead this Honourable Court. Thus, the court was urged to expunge the affidavit sworn by the said party from its record.
f) This single fact demonstrated the Applicant’s mala fides and lack of integrity and on this ground alone the entire application should be struck out with costs and the matter referred to criminal investigation.
g) It was further averred that Mahamuni Haji Tunda referred to as Maamuni Haji Tunda in his supporting affidavit was approached by the deponent and was surprised to learn that he was a litigant in court.
h) The affidavit was thus not sworn by him.
i) At Paragraph 13, the deponent stated that Mahamuni Haji Tunda after learning of the contents of the affidavit allegedly filed by him yet again filed a further affidavit clarifying the true state of affairs wherein he affirmed that the suit property belonged to his late uncle and grandfather Athumani Yusuf who died intestate and the property was inherited by the 5 th Respondent as per Islamic law before being sold to the 6 th Respondent.
j) It was thus averred that the Applicant took advantage of his uncle Mahamuni Haji Tunda’s illiteracy to procure his signature on a document whose contents were untrue and were not read back to him.
k) The court was thus urged to expunge the first supporting affidavit sworn by the said Mahamuni Haji Tuda.
l) The deponent also vehemently opposed the contents of the affidavit of Isaac Gathungu Wanjohi. It was stated that the proceedings in Msambweni Land Disputes Tribunal Case No 04 of 2009 and Kwale PM court land case no 39 of 2009 were not fraudulent and the same were known to the deponent and his entire family and the history of the suit property.
m) It was deposed that the applicant and Isaiah Kirindi were indeed interested in the suit property at some point but there was no consensus between them and the deponent’s grandparents on the price.
n) Mahamuni Haji Tunda was an agent and go between to the parties but the purchase price was never agreed upon nor paid and thus the transaction never took place. That this evidence was crucial during hearing of the matter at the tribunal.
o) The deponent stated that his family had always been in possession and occupation of the suit property and the Applicants had not availed any document indicating the alleged purchase.
p) No sale agreement had been availed by them. It was stated that the suit was an affront to the provisions of Section 3[3] of the Law of Contract Act, Cap. 23 on contracts being in writing.
q) It did not make sense how the suit property was purchased in the year 1992 and the balance to the purchase price of a sum of Kenya Shillings Seventy Thousand (Kshs. 70, 000/=) was paid in the year 2024. The deponent stated that the 5 th Respondent rightfully inherited the suit property vide Kadhis Court Case No E168 of 2021.
r) The deponent maintained that the suit property was family property and thus the Applicant had no locus to institute any suit as he was not a beneficiary to the estate of the deceased.
s) The court was asked to dismiss the application the same having been made in bad faith and without merit.
IV. The responses by the 5 th Respondent
12. The 5 th Respondent, Fatuma Saidi Maburuki, filed a Replying Affidavit dated 5 th December, 2025 in response to the application herein. She averred as follows that:-
a) All the facts raised in the application and the affidavit in its support were falsified and with the intention of dispossessing the 6 th Respondent off the suit property.
b) Further that she had read the Replying Affidavit by the 1 st Respondent and concurred with the averments therein.
c) It was stated that in June, 2021 she had sold the suit property to the 6 th Respondent who had approached her with interest to purchase the property. That an agreement was prepared and immediately the 6 th Respondent took possession and occupation of the suit property after signing of transfer forms. The 5 th Respondent sought that the application be dismissed with costs.
V. The Responses by the 6 th Respondents
13. Similarly, in opposition of the application herein, the 6 th Respondent through its director Ali Saleh Haji filed a Replying Affidavit. He averred as follows that:-
a) He had contacted the 5 th Respondent on behalf of the company for purchase of the suit property.
b) All the legal formalities associated with purchase of land were complied with including signing of an agreement and transfer forms.
c) The company then took possession of the suit property.
d) The deponent stated that the instant application emanates from the decisions in Land Dispute Case No. 004 of 2009 and Kwale Principal Magistrates' Court Land Case Number 36 of 2009 which were determined 16 years ago thus the same is contrary to Section 4(4) of the Limitation of Actions Act and the doctrine of finality and exhaustion.
e) The Application against the 2 nd , 3 rd and 4 th Respondents is therefore unsustainable in law as it offends Section 8 of the Judicature Act and Article 160(5) of the Constitution as the judicial officers and/or officials of the Land Dispute Tribunal have been sued in their names and/or personal capacity while the said Application arises from the performance of their judicial functions. As such the said Application should be struck out against them.
f) It was lastly deposed that the application is made in bad faith and lacks merit as it does not meet the threshold of the orders sought.
g) The Applicant had failed to adduce sufficient reasons to persuade this Honourable Court to exercise its discretion in his favour.
h) The court was thus urged to dismiss the application in the interest of Justice that the said Application be dismissed with costs.
VI. The Preliminary Objection raised by the 1 st , 5 th & 6 th Respondents herein
14. The 1 st , 5 th and 6 th Respondents raised a Preliminary Objection dated 14 th October, 2025 on the Application herein on the grounds that:-
a) The supervisory jurisdiction of the High Court over a sub - ordinate court's proceedings, as provided under Article 165 (6) and (7) of the Kenyan Constitution, is typically invoked through an application for Judicial Review or Constitutional Petition.
b) Prima facie, the grounds cited in the Application were issues of contested facts which were grounds of appeal and not supervisory jurisdiction of the High Court.
c) A suit was commenced by a Plaint, Petition, or Originating Summons. A miscellaneous Application was for seeking interim, procedural, or ancillary relief in relation to a primary, existing, or intended suit/action and could not thus stand as the main suit (the originating process) for pursuing a substantive claim. Thus the "naked" Application herein was fatally defective as it was not "rooted in a suit" and should be struck out with costs.
d) The Application herein mainly emanated from the decisions in “ Land Dispute Case No. 004 of 2009 and Kwale Principal Magistrates' Court Land Case Number 36 of 2009” which were determined 16 years ago thus it was contrary to Section 4 (4) of the Limitation of Actions Act, Cap. 22 and the doctrine of finality and exhaustion.
e) The Application against the 2 nd , 3 rd and 4 th Respondents was unsustainable in law as it offended the provision of Section 8 of the Judicature Act and Article 160 (5) of the Constitution as the Judicial Officers and/or Officials of the Land Dispute Tribunal had been sued in their names and/or personal capacity while the Application herein arose from the performance of their judicial functions. As such the said Applications should be struck out against them.
f) This suit herein was bad in law and untenable and an abuse of the due process of this Honourable Court and by reason thereof it should be struck out with costs.
VII. Submissions
15. On 16 th October, 2025 while all the parties were present in Court, direction were granted to have the application and the Preliminary Objection to be dealt with simultaneously.
16. Nonetheless, by the time of preparing this ruling only the 1 st 5 th and 6 th Respondents had complied with the said directions. The court will nevertheless proceed to render its verdict on its own merit.
A. The Written Submissions by the 1 st 5 th and 6 th Respondents
17. The 1 st 5 th and 6 th Respondents filed submissions dated 5 th December 2025 through the Law firm of Messrs. A O Hamza & Co Advocates. M/s. Hamid Advocate commenced her submissions by providing a brief background of the matter.
18. According to the Learned Counsel, the application by the Applicant was a scandalous, vexatious and egregious abuse of the judicial process. It was full of non – disclosure of material facts and falsehold and forged evidence. It was made to attack decision that was made sixteen ( 16 ) years ago.
19. Briefly, in early 1990, the Applicant and his Associate one Isaac Gathungu Wanjohi expressed interest in purchasing the suit property from its then registered owner, the late Athumani Yusf Haji. However, as stated by Mahamuni Haji Tuda, a crucial witness for the Applicant, the parties failed to agree on the purchase price and the sale never materialise.
20. Despite of the failed transaction, the Applicant proceeded to fraudulently procure a title in his name. Aggrieved, the late Athumani Yusuf Haji, in his lifetime, personally instituted proceedings in 2009 before the Kwale Principal Magistrate’s Court – Land Case No. 39 of 2009. Subsequently, the matter was referred to the Msambweni and Disputes Tribunal – Case No. 04 of 2009. The Applicant was duly served but failed to participate. After the hearing the Tribunal arrived a decision in favour of Mr. Athumani Yusuf Haji. It ordered that the title be reverted to him. There was no appeal preferred against the said decision.
21. Upon his demise, the Estate of the deceased and in consonance with the Islamic traditions consented that the land be inherited by the 5 th Respondents. It was lawfully effected through Khadhi’s Court Succession Cause No. E168 of 2021 . Subsequently, in June, 2021, the 5 th Respondent was lawfully registered proprietor, sold it to the 6 th Respondent.
22. However, according to the Learned Counsel, it after the lapse of sixteen ( 16 ) years that the Applicants filed this suit to challenge the titles issued to the Respondents. They filed a Supporting Affidavit which was sworn by a dead person.
23. The Learned Counsel informed Court that the issues before it related to the Originating Notice of Motion application dated 28 th June, 2025, the responses through a 56 Paragraphed Replying Affidavit dated 5 th December, 2025 and the Preliminary Objection dated 14 th October, 2025 by the 1 st , 5 th and 6 th Respondents herein dated application by the Applicant. On analysis of issues, Learned Counsel submitted on whether the Preliminary Objection was merited by referring to the provisions of Section 4 (4) of the Limitation of Actions Act, Cap. 22 on limitation of time to institute disputes after Judgement has been rendered on the subject matter. It was submitted that “ the doctrine of laches” and the statute of limitation act are not mere technicalities but are fundamental to the principle of finality in litigation. (See the case of:- “M’ikiara M’rinkanya & Another – Versus – Gilbert Kabeere M’mbijiwe (2007) KECA 115 (KLR)”. The Court held that:-
“For the forgoing reasons, the Notice of Motion dated 15 th November, 2001 and filed in Court on 16 th November, 2001 for warrant of eviction was, for all intents and purposes, an action upon a Judgement to recover possession of land. The proceedings to recover land having filed nearly 18 years after the final Judgement of the Court of Appeal were statute - barred”
24. That the Applicant had offered no explanation for his 16-year delay in filing the application and the suit was thus incurably time barred and must be struck out.
25. It was further submitted that the Applicant approached court vide an originating notice of motion filed as a Miscellaneous application. That this motion never sought interim or procedural relief pending filing of a substantive suit but it seeks final disportive orders that would determine the rights of the parties herein over the suit property. Counsel submitted that from the civil procedure any substantive suit ought to be commenced by a recognised originating process and that a miscellaneous application is not one of them. Reference was made in the case of: “ Golden Centuary Limited - Versus - Jossef [Miscellaneous Application E224 of 2024] [2025] KEELC 4397[KLR]”
26. It was submitted that the Applicant has failed to exhaust clear, suitable and effective statutory remedies available to him. That by circumventing filing an appeal, the Applicant is improperly asking this court to act as a court of first instance on matters that have been conclusively determined. That the court thus lacked jurisdiction to handle the dispute. It was further submitted that the Applicant had sued the 2 nd 3 rd and 4 th Respondents in their personal capacities and they were officials of the Msambweni Lands Dispute Tribunal, that this action is an affront to the constitutional doctrine of judicial immunity. This was contrary to the provision of Section 6 of the Judicature Act, Cap. 8 which extends this immunity to officers of a Court and other persons acting judicially. It provides as follows:-
“No Judge or Magistrate, and no other person acting judicially, shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of; and no officer of a court or other person bound to execute the lawful warrants, orders or other process of a Judge or such person shall be liable to be sued in any court for the execution of warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it”
27. The rationale for the immunity was not to place judicial officer above the law, but to ensure that they could discharge their duties without fear or favour, free from the chilling effect of vexatious litigation. Ideally, the attack should be on the decision and not the decision maker through an appeal.
28. To buttress on this legal preposition, the Learned Counsel place reliance was placed in the case of:- “ Bellevue Development Company Limited - Versus - Gikonyo & 3 Others [Petition 42 of 2018] [2020] KESC 43[KLR]” . Whereby the Supreme Court pronounced itself as follows:-
72. For avoidance of doubt, the protection or immunity of a Judge also goes into administrative acts, As in Stump, in GBM Kariuki – Versus – Hon. Fred Kwasi Apaloo (Supra), it was held that:-
“The Respondent, a Judge, holding the administrative office of Chief Justice while executing his judicial duties in Court or in execution of his administrative duties within the jurisdiction, enjoys absolute privilege from being sued civilly for his expressions either in writing or verbally. This is so under the common law and under the provisions of Section 6 of the Judicature Act. Cap.
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1. The Honourable Court was called upon to make a determination over two ( 2 ) pleadings being – the Notice of Motion application dated 28 th June 2025 filed by ENG. ISAIAH KIRINDI WAMBUGU MUTONYI, the Applicant herein. The second is a Notice of Preliminary Objection dated 14 th October 2025 raised by МОНАМMED YUSUF MWALIM KILUNGU, FATUMA SAIDI MABRUKU and RETAW HOLDINGS LIMITED, the 1 st , 5 th and 6 th Respondents herein respectively. The application notice of motion was filed pursuant to the provisions of Article 2 (4), 29, 30 and 165 (6) and (7) of the Constitution, Order 22 Rules 31 to 34 and Order 51 Rules 1-3 of the Civil Procedure Rules, 2010.
2. The application was opposed by a notice of preliminary objection
3. Upon service, the 5 th and 6 th Respondents also opposed the application vide a Replying Affidavits both dated 5 th December, 2025.
II. The case by the Applicant
4. The applicant sought for the following orders before court; -
a) Spent.
b) Spent.
c) That this honourable court be pleased to call for the record of the proceedings before:-
a. First, the Land Dispute case number 004 of 2009; Athumani Yusuf Haji – Versus - Isaiah Kirindi Wambugu Mutonyi.
b. Secondly, the Kwale Principal Magistrates Court Land Case Number 36 of 2009 - Athumani Yusuf Haji Versus Isaiah Kirindi Wambugu Mutonyi
c. Thirdly, Kadhis Court Kwale Succession Cause Number E168 of 2021; in the matter of the estate of Athumani Yusuf Haji.
For purposes of determining the legality of the proceedings in each of them in which the subject matter was Kwale/Funzi Island/96 registered in the name of the applicant on 27 th November, 1992 but the registration as proprietor was purportedly cancelled pursuant to a Judgement/award of the Kwale Land Disputes Tribunal and the title reverted to the Vendor - Athumani Yusuf Haji in 2009 and upon his death in the year 2016 was purportedly inherited by the 5 th Respondent who purportedly sold it to the 6 th Respondent in July, 2021 thereby completing a process of divestment of title through a callus abuse of the court process.
d) That this Honourable Court be pleased to supervise the said proceedings in the three courts, determine the legality of each proceeding and set aside the orders made and revert the title to the applicant by setting aside all entries made in the land register after 27 th November, 1992.
e) That this Honourable Court be pleased to declare that the proceedings instituted in land dispute case number 004 of 2009; Athumani Yusuf Haji - Versus - Isaiah Kirindi Wambugu Mutonyi are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.
f) That this Honourable Court be pleased to declare that the proceedings instituted in Kwale Principal Magistrates Court Land Case Number 36 of 2009 Athumani Yusuf Haji – Versus - Isaiah Kirindi Wambugu Mutonyi are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.
g) That this Honourable Court be pleased to declare that the proceedings instituted in Kwale Succession Cause Number E168 of 2021; in the matter of the estate of Athumani Yusuf Haji are fraudulent, null and void for having been instituted in the name of Athumani Yusuf Haji the Vendor of the said Kwale/Funzi Island/96 without his knowledge or consent.
h) That this Honourable Court be pleased to restrain the 6 th Respondent whether by itself or servants from entering into or being on Kwale/Funzi Island/96 pending the hearing and determination of the suit.
i) That this Honourable Court be pleased to restrain the 6 th Respondent from selling, charging and/or alienating the said Kwale/Funzi Island/96 pending the hearing and determination of this suit.
j) That this Honourable Court be pleased to restrain the 6 th Respondent from selling, charging and/or alienating the said Kwale/Funzi Island/96 pending the hearing and determination of this suit.
k) That this Honourable Court be pleased to declare that the 7 th Respondent has contravened his statutory duties under Sections 9 to 12 of the Land Registration Act 2012.
l) That this Honourable Court be pleased to declare that the predecessor of the 7 th Respondent contravened his statutory duties under sections 7 and 8 of the repealed Registered Land Act.
m) That this Honourable Court be pleased to declare that the applicant is the registered proprietor of Kwale/Funzi Island/96 and that all entries in the register of the same made since 27 th November, 1992 are null and void and are for expunging from the same.
n) That this Honourable Court be pleased to issue a permanent injunction restraining the 6 th Respondent whether by itself or servants from entering into, being on or in any way dealing with Kwale/Funzi Island/96.
o) That costs of this application be provided for.
5. The application was premised on grounds, testimonial facts and the averments made out by a set of three ( 3 ) affidavits separately sworn by MAAMUNI HAJI TUNDA, ISAAC GATHUNGU WANJOHI and lastly one by MOHAMED BAKARI.
6. The 1 st Supporting Affidavit sworn Mr. Maamuni Haji Tunda
a) Mr. Maamuni Haji Tunda swore a 64 Paragraphed Supporting Affidavit dated 28 th June, 2025 together with annextures marked as “MHT) annexed thereto.
b) He was born in Funzi Island and had many relatives there. He had always visited Funzi Island often.
c) The 1 st Respondent was a son of his first Cousin, Yusuf Mwalim while the 2 nd Respondent was a retired School teacher. He did not know whether he served as a member of Kwale Land Dispute Tribunal.
d) The 3 rd Respondent was a member of Nyumba Kumbi in Msambweni Location. The 4 th Respondent was a retired school teacher who resided at Msambweni and assisted the Chief and the DO in matters concerning administration of the location and division.
e) The 5 th Respondent a farmer and businesswoman who sild fried or cooked fish in Funzi sub – location. She was neither his relative nor that of his late uncle, Athumani Yusuf Haji whose heir she had falsely claimed to be and purported to inherit a property which his late uncle sold to the Applicant in the year 1992.
f) The 6 th Respondent was a private limited liability company which was incorporated under the repealed Companies Act Cap. 486 of the Laws of Kenya on 16 th December, 2013.
g) The 1 st to 6 th Respondents were fraudsters who had been involved in a scheme to deprive the applicant of the suit property which belonged to his late uncle Athumani Yusuf Haji in the year 1992.
h) He knew Eng. Isaac Gathungu Wanjohi and Engineer Isaiah Kirindi Wambugu Mutonyi. The latter was the Applicant herein,
i) That contrary to the false entries made showing that the applicants title had been cancelled, he was the owner of the suit property.
j) The Applicant bought the two parcels on Funzi Island in the year 1992 from the deponent’s father and uncle. Eng. Wanjohi bought parcel Kwale/Funzi Island /110 while Eng. Mutonyi purchased Kwale/Funzi Island/96 from his uncle.
k) The two persons had remained in occupation of the suit properties from the time they were purchased.
l) From the land registry records, there were fraudulent activities on the parcels showing that the applicant was registered as a proprietor of the parcel on 27 th November, 1992 but his name had been cancelled by the 7 th Respondent
m) The deponent stated that he had played a key role in sale of the properties to the Applicant.
n) A grandson of his uncle, Mohammed Yusuf Mwalim alias Kilungu, served as imposter in fraudulent proceedings filed in the Kwale Land Disputes Tribunal with a view to disposing the Applicant of his land and purported to be him who filed a case against the Applicant.
o) During the last years of his life, his uncle, Athumani Yusuf Haji, who was single treated him as his son and he used to ran his errands for him. He served as his confidant and everyone in his extended family including the 1 st Respondent knew that.
p) The 1 st Respondent led a polygamous marriage and lavish life. He instated fraudulent proceedings against his uncle at the Kwale Courts. There was no Power of Attorney given to the 1 st Respondent in the Land Disputes Tribunal and the Principal Magistrates’ Court at Kwale files.
q) The 2 nd and 4 th Respondents who were purported members of Kwale Land Disputes Tribunal both the 1 st Respondent and him, and there was no way they could mistake the 1 st Respondent for him.
r) According to the abstract of title, the 1 st Respondent obtained a fraudulent order which was purportedly used to cancel the registration of the Applicant as proprietor and replace him with that of his uncle on 11 th December, 2009 when he was alife and without his knowledge.
s) He had seen the fraudulent proceedings which were instituted in the Kadhi’s Court at Kwale by the 5 th Respondent in Succession Cause Number E186 of 2021.
t) The 5 th Respondent was not the daughter of his late uncle and according to his customs. He was the one who should have inherited it.
u) From the abstract of the title, the 5 th Respondent was registered as the proprietor on 30 th April, 2021 and on 8 th July, 2021 purported to sell it to the 6 th Respondent.
v) He was advised by his Advocates on record that:-
i. It was a habit of the Land Registrars including the Chief Land registrar to issue fraudulent parallel titles to assist other people to steal land.
ii. The 5 th & 6 th Respondents were holders of fraudulent titles and the practice of the Court was to nullify them.
iii. This Honourable Court had jurisdiction to supervise proceedings of the sub – ordinate Court and nullify them and give such direction as would serve the ends of justice,
iv. In this case, the ends of justice would be served bt cancelling all the fraudulent entries in the land register and leave the Applicant as the proprietor.
v. It was the practice of Court to recommend to the Director of Public Prosecution to cause to be investigated under Article 157 of the Constitution, whether offences had been committed by persons before the Court and prosecution of offenders to take place.
w) The Applicant was an investor in real Estate in the County of Kwale. He owned a number of parcels of land both in Funzi Island and the mainland.
x) Sometimes between 1990 and 1991 he visited Funzi Island and indicated to some acquaintances that he was looking for and to buy, He was friend t a politician in Msambweni known as Councillor Nasoro Juma Mwadzikomba and who served as an agent for looking for people wanting to buy parcels of land.
yz) The Deponent’s father – haji Yusuf - and uncle decided to sell their parcel of land in Funzi Island and communicated their intention to Councillor Nasoro Juma. The Councillor informed them that Engineer Wanjohi was interested in the parcels.
) They all met and undertook the sale transaction process in earnest. However, on conducting search they found there had been some interference on the registration entries. The parcels had been registered in the names of the 5 th and 6 th Respondents.
) The 6 th Respondent had never taken possession of the suit land.
) There was need to have the proceedings of the Kadhi’ Court and Principal Magistrate Court ordering Athumani Yusuf Haji as the owners of the land in 2009 and the 5 th Respondent in 2021 knowing very well the land had been sold to Engineer Mutonyi be brought before this Court.
) The deponent disputes the three cases listed at prayer 3 of the application and states that the same were all forged as his late uncle never participated in the said proceedings.
7. The 2 nd Supporting Affidavit sworn by Engineer Isaac Gathungu Wanjohi.
8. Engineer Isaac Gathungu Wanjohi, in his affidavit dated 28 th June, 2025 in support of the application stated as follows that:-
a) The suit property was amongst several properties he invested in while in Kwale County.
b) In year 1992 he was shown the suit property by the late Counsel Nasoro who introduced him to his two brothers Haji Yusuf and Athumani Yusuf.
c) There was also one Maamuni Tunda who acted as an agent and negotiated the purchase price to the suit property on behalf of the two brothers who were the vendors.
d) The purchase price was agreed upon and the sale effected.
e) Later in the year 2021 he learnt that there was an attempt to open the bargain of the suit property.
f) The bank details were given and the deponent paid the remaining balance of the purchase price being a sum of Kenya Shillings Seventy Thousand (Kshs. 70,000/-) to one Yusuf Haji Maalim a nephew to both vendors.
9. The 3 rd Affidavit by Mohamed Bakari Musa.
10. In his affidavit in support of the application averred as follows that:-
a) the applicant had been known to him for more than 30 years.
b) At paragraph 9 of the affidavit he averred that he had been appointed as a caretaker of the suit property; and
c) The land was owned by the applicants herein.
d) The suit property had not been interfered with until the year 2021 when he met some surveyors on the land.
e) The said surveyors informed him that they were there to undertake some survey work.
f) The 6 th Respondent was not in possession of the suit property.
III. The responses by the 1 st Defendant/Respondent’s
11. The application was opposed through a 59 Paragraphed Replying affidavit dated 5 th December 2025 sworn by Mohamed Yusuf Haji alias Mohamed Yusuf Haji Mwalim Kilungu who averred as follows that:-
a) He was the 1 st Respondent herein and was well conversant with the matters in issue herein and therefore competent to swear this Affidavit.
b) He had had the application and the supporting affidavit read to him. Its contents were vehemently opposed.
c) The contents of the application and the supporting affidavit thereto were false and geared towards dispossessing the 6 th Respondent of the suit property Kwale/Funzi Island/96.
d) The deponent to the affidavit one Mohamed Bakari Musa passed away on the 24 th June, 2025. Attached and marked as “MYM – 2 “ was a copy of the Certificate of Death.
e) Therefore, it was impossible for the deceased to have sworn the affidavit on 28 th June, 2025. It was therefore evident the Applicant had procured a forgery, committed perjury and knowingly uttered a false document in a desperate attempt to mislead this Honourable Court. Thus, the court was urged to expunge the affidavit sworn by the said party from its record.
f) This single fact demonstrated the Applicant’s mala fides and lack of integrity and on this ground alone the entire application should be struck out with costs and the matter referred to criminal investigation.
g) It was further averred that Mahamuni Haji Tunda referred to as Maamuni Haji Tunda in his supporting affidavit was approached by the deponent and was surprised to learn that he was a litigant in court.
h) The affidavit was thus not sworn by him.
i) At Paragraph 13, the deponent stated that Mahamuni Haji Tunda after learning of the contents of the affidavit allegedly filed by him yet again filed a further affidavit clarifying the true state of affairs wherein he affirmed that the suit property belonged to his late uncle and grandfather Athumani Yusuf who died intestate and the property was inherited by the 5 th Respondent as per Islamic law before being sold to the 6 th Respondent.
j) It was thus averred that the Applicant took advantage of his uncle Mahamuni Haji Tunda’s illiteracy to procure his signature on a document whose contents were untrue and were not read back to him.
k) The court was thus urged to expunge the first supporting affidavit sworn by the said Mahamuni Haji Tuda.
l) The deponent also vehemently opposed the contents of the affidavit of Isaac Gathungu Wanjohi. It was stated that the proceedings in Msambweni Land Disputes Tribunal Case No 04 of 2009 and Kwale PM court land case no 39 of 2009 were not fraudulent and the same were known to the deponent and his entire family and the history of the suit property.
m) It was deposed that the applicant and Isaiah Kirindi were indeed interested in the suit property at some point but there was no consensus between them and the deponent’s grandparents on the price.
n) Mahamuni Haji Tunda was an agent and go between to the parties but the purchase price was never agreed upon nor paid and thus the transaction never took place. That this evidence was crucial during hearing of the matter at the tribunal.
o) The deponent stated that his family had always been in possession and occupation of the suit property and the Applicants had not availed any document indicating the alleged purchase.
p) No sale agreement had been availed by them. It was stated that the suit was an affront to the provisions of Section 3[3] of the Law of Contract Act, Cap. 23 on contracts being in writing.
q) It did not make sense how the suit property was purchased in the year 1992 and the balance to the purchase price of a sum of Kenya Shillings Seventy Thousand (Kshs. 70, 000/=) was paid in the year 2024. The deponent stated that the 5 th Respondent rightfully inherited the suit property vide Kadhis Court Case No E168 of 2021.
r) The deponent maintained that the suit property was family property and thus the Applicant had no locus to institute any suit as he was not a beneficiary to the estate of the deceased.
s) The court was asked to dismiss the application the same having been made in bad faith and without merit.
IV. The responses by the 5 th Respondent
12. The 5 th Respondent, Fatuma Saidi Maburuki, filed a Replying Affidavit dated 5 th December, 2025 in response to the application herein. She averred as follows that:-
a) All the facts raised in the application and the affidavit in its support were falsified and with the intention of dispossessing the 6 th Respondent off the suit property.
b) Further that she had read the Replying Affidavit by the 1 st Respondent and concurred with the averments therein.
c) It was stated that in June, 2021 she had sold the suit property to the 6 th Respondent who had approached her with interest to purchase the property. That an agreement was prepared and immediately the 6 th Respondent took possession and occupation of the suit property after signing of transfer forms. The 5 th Respondent sought that the application be dismissed with costs.
V. The Responses by the 6 th Respondents
13. Similarly, in opposition of the application herein, the 6 th Respondent through its director Ali Saleh Haji filed a Replying Affidavit. He averred as follows that:-
a) He had contacted the 5 th Respondent on behalf of the company for purchase of the suit property.
b) All the legal formalities associated with purchase of land were complied with including signing of an agreement and transfer forms.
c) The company then took possession of the suit property.
d) The deponent stated that the instant application emanates from the decisions in Land Dispute Case No. 004 of 2009 and Kwale Principal Magistrates' Court Land Case Number 36 of 2009 which were determined 16 years ago thus the same is contrary to Section 4(4) of the Limitation of Actions Act and the doctrine of finality and exhaustion.
e) The Application against the 2 nd , 3 rd and 4 th Respondents is therefore unsustainable in law as it offends Section 8 of the Judicature Act and Article 160(5) of the Constitution as the judicial officers and/or officials of the Land Dispute Tribunal have been sued in their names and/or personal capacity while the said Application arises from the performance of their judicial functions. As such the said Application should be struck out against them.
f) It was lastly deposed that the application is made in bad faith and lacks merit as it does not meet the threshold of the orders sought.
g) The Applicant had failed to adduce sufficient reasons to persuade this Honourable Court to exercise its discretion in his favour.
h) The court was thus urged to dismiss the application in the interest of Justice that the said Application be dismissed with costs.
VI. The Preliminary Objection raised by the 1 st , 5 th & 6 th Respondents herein
14. The 1 st , 5 th and 6 th Respondents raised a Preliminary Objection dated 14 th October, 2025 on the Application herein on the grounds that:-
a) The supervisory jurisdiction of the High Court over a sub - ordinate court's proceedings, as provided under Article 165 (6) and (7) of the Kenyan Constitution, is typically invoked through an application for Judicial Review or Constitutional Petition.
b) Prima facie, the grounds cited in the Application were issues of contested facts which were grounds of appeal and not supervisory jurisdiction of the High Court.
c) A suit was commenced by a Plaint, Petition, or Originating Summons. A miscellaneous Application was for seeking interim, procedural, or ancillary relief in relation to a primary, existing, or intended suit/action and could not thus stand as the main suit (the originating process) for pursuing a substantive claim. Thus the "naked" Application herein was fatally defective as it was not "rooted in a suit" and should be struck out with costs.
d) The Application herein mainly emanated from the decisions in “ Land Dispute Case No. 004 of 2009 and Kwale Principal Magistrates' Court Land Case Number 36 of 2009” which were determined 16 years ago thus it was contrary to Section 4 (4) of the Limitation of Actions Act, Cap. 22 and the doctrine of finality and exhaustion.
e) The Application against the 2 nd , 3 rd and 4 th Respondents was unsustainable in law as it offended the provision of Section 8 of the Judicature Act and Article 160 (5) of the Constitution as the Judicial Officers and/or Officials of the Land Dispute Tribunal had been sued in their names and/or personal capacity while the Application herein arose from the performance of their judicial functions. As such the said Applications should be struck out against them.
f) This suit herein was bad in law and untenable and an abuse of the due process of this Honourable Court and by reason thereof it should be struck out with costs.
VII. Submissions
15. On 16 th October, 2025 while all the parties were present in Court, direction were granted to have the application and the Preliminary Objection to be dealt with simultaneously.
16. Nonetheless, by the time of preparing this ruling only the 1 st 5 th and 6 th Respondents had complied with the said directions. The court will nevertheless proceed to render its verdict on its own merit.
A. The Written Submissions by the 1 st 5 th and 6 th Respondents
17. The 1 st 5 th and 6 th Respondents filed submissions dated 5 th December 2025 through the Law firm of Messrs. A O Hamza & Co Advocates. M/s. Hamid Advocate commenced her submissions by providing a brief background of the matter.
18. According to the Learned Counsel, the application by the Applicant was a scandalous, vexatious and egregious abuse of the judicial process. It was full of non – disclosure of material facts and falsehold and forged evidence. It was made to attack decision that was made sixteen ( 16 ) years ago.
19. Briefly, in early 1990, the Applicant and his Associate one Isaac Gathungu Wanjohi expressed interest in purchasing the suit property from its then registered owner, the late Athumani Yusf Haji. However, as stated by Mahamuni Haji Tuda, a crucial witness for the Applicant, the parties failed to agree on the purchase price and the sale never materialise.
20. Despite of the failed transaction, the Applicant proceeded to fraudulently procure a title in his name. Aggrieved, the late Athumani Yusuf Haji, in his lifetime, personally instituted proceedings in 2009 before the Kwale Principal Magistrate’s Court – Land Case No. 39 of 2009. Subsequently, the matter was referred to the Msambweni and Disputes Tribunal – Case No. 04 of 2009. The Applicant was duly served but failed to participate. After the hearing the Tribunal arrived a decision in favour of Mr. Athumani Yusuf Haji. It ordered that the title be reverted to him. There was no appeal preferred against the said decision.
21. Upon his demise, the Estate of the deceased and in consonance with the Islamic traditions consented that the land be inherited by the 5 th Respondents. It was lawfully effected through Khadhi’s Court Succession Cause No. E168 of 2021 . Subsequently, in June, 2021, the 5 th Respondent was lawfully registered proprietor, sold it to the 6 th Respondent.
22. However, according to the Learned Counsel, it after the lapse of sixteen ( 16 ) years that the Applicants filed this suit to challenge the titles issued to the Respondents. They filed a Supporting Affidavit which was sworn by a dead person.
23. The Learned Counsel informed Court that the issues before it related to the Originating Notice of Motion application dated 28 th June, 2025, the responses through a 56 Paragraphed Replying Affidavit dated 5 th December, 2025 and the Preliminary Objection dated 14 th October, 2025 by the 1 st , 5 th and 6 th Respondents herein dated application by the Applicant. On analysis of issues, Learned Counsel submitted on whether the Preliminary Objection was merited by referring to the provisions of Section 4 (4) of the Limitation of Actions Act, Cap. 22 on limitation of time to institute disputes after Judgement has been rendered on the subject matter. It was submitted that “ the doctrine of laches” and the statute of limitation act are not mere technicalities but are fundamental to the principle of finality in litigation. (See the case of:- “M’ikiara M’rinkanya & Another – Versus – Gilbert Kabeere M’mbijiwe (2007) KECA 115 (KLR)”. The Court held that:-
“For the forgoing reasons, the Notice of Motion dated 15 th November, 2001 and filed in Court on 16 th November, 2001 for warrant of eviction was, for all intents and purposes, an action upon a Judgement to recover possession of land. The proceedings to recover land having filed nearly 18 years after the final Judgement of the Court of Appeal were statute - barred”
24. That the Applicant had offered no explanation for his 16-year delay in filing the application and the suit was thus incurably time barred and must be struck out.
25. It was further submitted that the Applicant approached court vide an originating notice of motion filed as a Miscellaneous application. That this motion never sought interim or procedural relief pending filing of a substantive suit but it seeks final disportive orders that would determine the rights of the parties herein over the suit property. Counsel submitted that from the civil procedure any substantive suit ought to be commenced by a recognised originating process and that a miscellaneous application is not one of them. Reference was made in the case of: “ Golden Centuary Limited - Versus - Jossef [Miscellaneous Application E224 of 2024] [2025] KEELC 4397[KLR]”
26. It was submitted that the Applicant has failed to exhaust clear, suitable and effective statutory remedies available to him. That by circumventing filing an appeal, the Applicant is improperly asking this court to act as a court of first instance on matters that have been conclusively determined. That the court thus lacked jurisdiction to handle the dispute. It was further submitted that the Applicant had sued the 2 nd 3 rd and 4 th Respondents in their personal capacities and they were officials of the Msambweni Lands Dispute Tribunal, that this action is an affront to the constitutional doctrine of judicial immunity. This was contrary to the provision of Section 6 of the Judicature Act, Cap. 8 which extends this immunity to officers of a Court and other persons acting judicially. It provides as follows:-
“No Judge or Magistrate, and no other person acting judicially, shall be liable to be sued in a civil court for an act done or ordered by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction, provided he, at the time, in good faith believed himself to have jurisdiction to do or order the act complained of; and no officer of a court or other person bound to execute the lawful warrants, orders or other process of a Judge or such person shall be liable to be sued in any court for the execution of warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it”
27. The rationale for the immunity was not to place judicial officer above the law, but to ensure that they could discharge their duties without fear or favour, free from the chilling effect of vexatious litigation. Ideally, the attack should be on the decision and not the decision maker through an appeal.
28. To buttress on this legal preposition, the Learned Counsel place reliance was placed in the case of:- “ Bellevue Development Company Limited - Versus - Gikonyo & 3 Others [Petition 42 of 2018] [2020] KESC 43[KLR]” . Whereby the Supreme Court pronounced itself as follows:-
72. For avoidance of doubt, the protection or immunity of a Judge also goes into administrative acts, As in Stump, in GBM Kariuki – Versus – Hon. Fred Kwasi Apaloo (Supra), it was held that:-
“The Respondent, a Judge, holding the administrative office of Chief Justice while executing his judicial duties in Court or in execution of his administrative duties within the jurisdiction, enjoys absolute privilege from being sued civilly for his expressions either in writing or verbally. This is so under the common law and under the provisions of Section 6 of the Judicature Act. Cap.
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