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Top court throws out Bellevue firm appeal

Judges enjoy absolute immunity from civil and criminal actions by parties aggrieved by judicial decisions, the Court of Appeal ruled yesterday.

The three-judge Bench threw out an appeal by Bellevue Development Company Limited challenging the dismissal of its petition by High Court judge Fred Ochieng on May 3, last year following preliminary objections raised by Justices Francis Gikonyo and Charles Kariuki who had ruled in favour of Vinayak Builders Ltd in the Commercial Division.

The firm had complained that the two judges had separately made rulings on March 18, 2014, April 8, 2014 and on April 8, 2016 which were in bad faith and breached its right to a fair trial of its dispute with Vinayak Builders Limited.

The dispute had also been the subject of arbitration proceedings before, initially, the late Norman Mururu and later Paul lawyer Mwaniki Gachoka. Appellate judges Patrick Kiage, Kathurima M’Inoti and Philip Waki said the protection granted to judges is meant to uphold the rule of law and the sanctity of their decisions. 

“Even though judges are fallible human beings like everybody else, a mechanism does exist in our laws for correcting whatever errors they may commit in the discharge of their juridical functions.

Aggrieved parties are at liberty to appeal as a matter of course and that appellate system suffices to deal with ordinary errors of law and fact so that in the end justice is served.

I also harbour no doubts that where a judge’s conduct consists in egregious illegalities, violation of the judicial oath or outright illegalities and criminality, a mechanism for removal does exist and can be triggered in appropriate cases,” Justice Kiage said in his lead judgment.

“The purposes of the judicial immunity provided by law is not to visit upon the citizens, judicial impunity. In its true character, immunity is never the father of impunity.

The judicial immunity conferred by Article 160(5) is an important pillar or prop of the independence of the Judiciary. The immunity is not for the personal benefit of judges; like the contempt power, it was never intended for the ego or personal interest of judges,” Justice Kathurima said.

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