PETER WAITITU NDEGWA AND DILIP PAL AND 11 Others VS EPHANTUS MBOGO NJUE AND THE CHIEF MAGISTRATE, EMBU

1. The 2^nd respondents, through the Attorney General, has filed a notice of preliminary objection dated 15^th July 2024 before hearing of the appeal herein. The preliminary objection is premised on the following grounds:
   1. That the petition expressly offends the provisions of Article 160(5) of the constitution as read together with section 6 of the Judicature Act;
   2. That the petition expressly offends the provisions of section 12 of the Government Proceedings Act;
   3. That the petition contravenes the provisions of Order 1 Rule 8 of the Civil Procedure Rules 2010; and
   4. That the petition is against a judicial decision of a magistrate which can only be challenged by way of an application for review before the same court or by way of an appeal to a higher court.
2. The court directed the parties to file written submissions for the preliminary objection and only the 2^nd respondent complied. The first respondent stated that he supported the preliminary objection.
3. In its written submissions, the 2^nd respondent stated that the preliminary objection raises a point of law according to the principles laid down in the case of Mukisa Biscuit Manufacturing Company Limited vs. ... Ltd v West End Distributors [1969] EA 696. That judges and magistrates are protected from legal action for orders made in their official capacity and it relied on Article 160(5) of the Constitution and section 6 of the Judicature Act. Further reliance was placed on section 3(1)(c) of the Judicature Act and the cases of Anderson v. Gorrie (1895) 1QB 668 and Siasa Pashua & 2 Others v. Mbaruk Khamis Mohamed & Another (2012) eKLR.
4. It submitted that the appeal was field contrary to statute and it cannot be saved through the discretion of the court under Article 159(2) of the Constitution since the error is more that a technicality. That the appeal is a void act and a nullity and it relied on the case of MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 (PC) at 1172I. That the finding of a court of competent jurisdiction should be challenged on review, revision or appeal, which avenues are open to the appellants.
5. It also relied on the case of Bellevue Development Company Ltd v. Francis Gikonyo & 3 others [2020] KESC 43 (KLR) and urged that it would be chaotic if disgruntled litigants were left to sue judicial officers for their decisions made in official capacity. That the court was well within its powers in punishing anyone who breaches court orders in civil proceedings without the matter turning to be criminal in nature. That since the 2^nd respondent was exercising its judicial powers in making the order, the appellants ought to seek review or appeal against the decision and not through constitutional or criminal appeal.
6. The issue for determination is whether the preliminary objection has merit.
7. In the case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd [1969) EA 696 at page 700 paragraphs D-F the court stated:

“....A Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the Jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

1. The preliminary objection is against the petition of appeal dated 04^th April 2023 through which the appellants challenge the ruling of Hon. Mrs. Lucy Ambasi, Chief Magistrate delivered on 27^th March 2023. In that ruling, the Chief Magistrate determined a contempt of court application and sentenced each of the appellants to pay a fine of Kshs.100,000/= within 24 hours, in default to serve 5 days imprisonment. Through the preliminary objection, the 2^nd respondent has argued that the order was made by the Chief Magistrate in her official capacity and in exercise of judicial powers.
2. Section 6 of the Judicature Act CAP 8 of the Laws of Kenya provides:

“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 a warrant, order or process which he would have been bound to execute if within the jurisdiction of the person issuing it.”

1. As stated herein before, the 2^nd respondent made the order in determination of an application filed under, inter alia, section 10(3) of the Magistrates Court Act which provides:

“In the case of civil proceedings, the willful disobedience of any judgment, decree, direction, order, or other process of a court or willful breach of an undertaking given to a court constitutes contempt of court.”

1. The 2^nd respondent held the appellants in contempt of court. After issuance of this order, the appellant filed a criminal appeal seeking inter alia, declarations that the fines imposed were too high and that some of the appellants are no longer directors of Safaricom PLC. The appellants did not seek review of this order in the said court, neither did they appeal against the civil proceedings. A judge or judicial officer is protected from liability in a court for a matter where he acted within his jurisdiction and in exercise of judicial discretion.
2. In my view, the 2^nd respondent is indeed shielded by this amnesty and it cannot be sued in the manner contemplated in the petition of appeal. It is my view that judicial review proceedings are the only available recourse for a party who feels aggrieved by decisions of a court issuing orders in its official capacity as a public body. In fact, in this case, there were other avenues available to the appellants but they chose to file a petition of appeal in a criminal appeal.
3. I find that the preliminary objection has merit and it is hereby allowed. Consequently, the Petition of Appeal dated 04^th April 2023 is hereby struck out. 
4. It is so ordered.

Delivered, dated and signed at Embu this 4^th day of December, 2024.