Tourist hotel sues judge, Attorney General for Sh142 million over demolition
The case questions whether the immunity accorded to judges under Article 160 of the Constitution extends to acts alleged to be "manifestly illegal, unconstitutional and unlawful."
A tourist hotel in Kwale, Estate Sonrisa Limited, has filed a constitutional petition at the High Court challenging judicial immunity and seeking over Sh142 million in damages after its luxury hotel in Diani was demolished under contested court orders.
Through lawyer Nelson Havi, the company is suing Justice Naikuni Lucas Leperes, the Attorney General, and businessman Samuel Kamau Macharia.
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The case questions whether the immunity accorded to judges under Article 160 of the Constitution extends to acts alleged to be "manifestly illegal, unconstitutional and unlawful."
The dispute stems from an order issued on February 17, 2022, by Justice Naikuni in Mombasa Miscellaneous Application No. E006 of 2022. Acting on that order, Macharia, assisted by police officers, demolished Estate Sonrisa's beach hotel on February 23, 2022. The property, registered as Kwale/Galu Kinondo/48, neighboured Macharia's land parcel Kwale/Galu Kinondo/50, which has long been the subject of boundary litigation.
Sonrisa argues that the judge's order was irregular, coming despite a 2020 Court of Appeal ruling that had set aside earlier directives allowing forcible demolitions.
The company contends that the National Police Service acted unlawfully by enforcing the order, and further failed to investigate its subsequent complaint of assault, theft and malicious property damage.
In its prayers, the petitioner seeks declarations that the respondents violated constitutional provisions on the rule of law, fair hearing, property rights and access to justice. It wants the court to hold Justice Naikuni, the Attorney General and Macharia jointly and severally liable for the destruction of its hotel.
Specifically, the firm is demanding compensation of Sh125,010,727 for actual loss and an additional Sh17,407,568 for loss of business.
Havi argues that the case raises novel constitutional questions that warrant determination by an expanded bench of at least five judges to be appointed by the Chief Justice.
He cites previous rulings which established that judicial immunity does not extend to unlawful or criminal acts.
The petition also seeks clarity on the meaning of "good faith" and "lawful performance of judicial function" under Article 160(5) of the Constitution and Section 6 of the Judicature Act.
"The prevalence of cases where litigants suffer irreversible injury due to judicial misconduct requires interrogation," the petition reads in part.
The matter has been filed under a certificate of urgency, with the petitioner insisting it should be heard even during the court's vacation.
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