John Hayo Owuor v Attorney General & 2 others

High Court, at Kisumu April 15, 1991

Khamoni J

Civil Case No 80 of 1985

Judicial Immunity – immunity from proceedings of court - where an officer of the court is discharging his duties - whether a judicial officer executing an order of a judge who made a decision without jurisdiction is protected by immunity.

Judicial Immunity – immunity from process – where a judge has issued an order which has not been executed by the concerned court officers - whether such omissions are protected under section 6 of the Judicature Act.

Government Proceedings – Immunity from process of government officers – where a government officer acts negligently in the discharge of his duties - whether such an officer is immune from legal action under section 4(5) of the Government Proceedings Act.

Judicial Immunity – responsibilities of a judicial nature – where a court has delivered its decision and the only thing required is communication of the decision - whether communication of the decision amounts to a responsibility of a judicial nature - whether administrative acts are protected under section 4(5) of the Government Proceedings Act.

Limitation of Actions – mistake or fraud – where a party due to a mistake fails to file an action within time – when the time of limitation begins to run in such a case.

False Imprisonment – confinement - where a person is illegally confined – the confinement is a breach of fundamental rights and the persons responsible liable.

Damages – general damages – false imprisonment – assessment of damages where a person is illegally confined for a period of one year – court considering economic trend in the country, rampant inflation and duration of confinement – award of Kshs 100,000/-.

The plaintiff filed a suit against the defendants praying for judgment against them jointly and severally for general damages for false imprisonment and unlawful confinement for one year including mental and physical suffering. The plaintiff was charged and convicted with the offence of stealing and jailed for four years. He appealed against conviction, where the sentence was reduced to two and half years (21/2) imprisonment. The decision to reduce the sentence was not communicated to him or the prison authorities hence he served the full term earlier sentenced.

The defendants in response argued that their actions amounted to judicial proceedings hence they were protected from legal action and the suit was time barred as it was filed after the expiry of filing claims against the Government.

Held:

1. When a Judge acting judicially does something which is outside his jurisdiction but does it in good faith believing that he has the jurisdiction, he is protected under section 6 of the Judicature Act. If an Executive Officer of the Court or any other person like a court broker who is bound to execute the lawful warrants, orders or other process of the judge, does such execution in a situation where the judge acted without jurisdiction, that Executive Officer or Court Broker is protected under section 6 of the Judicature Act.

2. The order of the judge was not executed. Instead there was an act of omission to execute the order. That omission was not part of the order of the judge. It was therefore not something those who made the omission were lawfully bound to do in accordance with the order which had been made by the Judge. Those who made the omission are not therefore protected by section 6 of the Judicature Act.

3. For an officer to be protected by section 4(5) of the Government Proceedings Act, he must have acted or omitted to act while discharging or purporting to discharge responsibilities of a judicial nature vested in him or any responsibilities which he has in connection with the execution of judicial process. Negligence cannot be said by any stretch of imagination to be responsibility of a judicial nature or responsibility had in connection with the execution of judicial process.

4. Communication of the Court’s decision to the prison authorities and the plaintiff, after the appeal had been heard and sentence reduced, cannot be said to be a responsibility of judicial nature as it was an administrative act and the privilege conferred by section 4(5) of the Government Proceedings Act cannot come into play.

5. The plaintiff’s incarceration for a period of one year in prison was a breach of his fundamental rights as enshrined in the Constitution and the defendants are liable to him.

6. Where in the case of an action for which a period of limitation is prescribed, the action for relief from the consequences of a mistake the period of limitation does not begin to run until the plaintiff has discovered the fraud or mistake or could with reasonable diligence have recovered it.

Prayers granted.

Cases

1. Royal Aquarium and Summer and Winter Garden Society v Parkinson (1892) 1 QB 431; [1891-4] All ER 429

2. Attorney General v Oluoch [1972] EA 392

3. Davis and Shirtliff Ltd v The Attorney General [1976-80]1 KLR 63

4. M’Ibui v Dyer [1967] EA 315

5. Nsubuga v Attorney General [1974] EA 1

Texts

Simonds, V et al (Eds) (1962) Halsbury’s Laws of England London: Butterworths & Co Ltd 3rd Edn Vol XXXVIII p 767 para 1270

Statutes

1.Government Proceedings Act (cap 40) section 4(5)

2. Judicature Act (cap 8) section 6

3. Crown Proceedings Act, 1947 [UK] section 2

4. Local Government Act, 1888 [UK]

5. Constitution of Kenya section 72(1) (a), (6)

6. Public Authorities Limitation Act (cap 39) section 3 (1);5

7. Limitation of Actions Act (cap 22) section 26 (b), (c)

Advocates

Mr Omondo for Mr Hawalla for the Plaintiff

Mrs Muinde for the Defendant

Agency – principal and agent - liability of principal for the act of his agent - when principal is bound by a fraudulent act of his agent - issue of a forged certificate of insurance - whether the person isuing was an agent for the insurer or the insured - whether insurer bound under the insurance policy. Insurance law - insurance agent - when insurer may be bound by the fraudulent act of an agent - issue of a forged certficiate of insurance - whether insurer bound to honour the insurance policy.