It is impossible to sue a judge or magistrate in person for handling your case in a manner not favourable to you.

High Court Judge Mumbi Ngugi has said judges or magistrates handled matters in their capacity as judicial officers. Instead of suing, Justice Ngugi said, one should seek for a review or appeal against the orders.

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Quoting a judgment delivered by Justice Samuel Bosire years back, the judge said a judicial officer is absolutely immune from a criminal or civil suit arising from acts taken within or even in excess of his jurisdiction.

“Judicial officers should not be put in a position which forces them to look over their backs every time they make a decision. Whenever a judicial officer has to make a decision, he should make such a decision in good faith and without fear that he will be taken to court for making the decision,” Bosire ruled.

Judge Mumbi said this in a case in which Spero Africa Limited had sued the Kericho Senior Resident Magistrate Benard Kipyegon for refusing to adjourn a traffic case. The company had been sued by Elizabeth Karumbo for a claim of damages in respect of a road accident that occurred in December 2010. The court ruled in her favour.

On October 24, 2016, the company filed an application to have the decision reviewed and it was allowed to proceed with the matter. However, on March 15, 2017 the company asked the court to adjourn the case so that it could amend its defence. The other parties opposed and the court ruled in their favour.

Aggrieved by the decision, the company moved to the High Court under Judicial Review in April 2017 to quash the magistrate’s ruling on the grounds that the court refused to give it a hearing. The company claimed that the magistrate failed to observe the principles of natural justice by directing the parties to proceed with the judgment on record and denied the applicant’s right to be heard on merit.

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In her judgment delivered on July 3, Judge Mumbi said the magistrate exercised his discretion on the facts before him to deny the company an adjournment. “What the applicant should have done is file an appeal against the decision,” the judge said.