Win for taxpayers as officials lose immunity in compensation suits
Crime and Justice
By
Daniel Chege
| Jul 02, 2026
Mischievous public servants have had immunity in compensation cases even when they lose the cases as they have not been personally held liable.
The officers have been riding on the umbrella of the government offices they hold when found guilty of impunity, discrimination or abuse of office.
When the officers have been sued, they have used Section 21 of the Government Proceedings Act to argue that it shielded them from prosecution or being held personally responsible.
Others argued that they were carrying out their actions in good faith and that all compensation and damages sought should be from the ministry or department they represent or the office of the Attorney General.
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However, recent court rulings have exposed such officials.
Three months ago, Court of Appeal judges upheld a High Court ruling which declared that thus; “Public servants who act maliciously towards fellow citizens lose personal protection and immunity afforded to them by virtue of their public office.”
Although the judges did not touch on the merits of the case filed by former Rongai District Commissioner Joseph Motari, they did not tamper with Justice Joel Ngugi’s judgement that was delivered six years ago.
Ngugi, now at the in the Court of Appeal, personally held Motari responsible for maliciously prosecuting six people in a case linked to political witch hunt.
The court noted that the charge sheet used for the six was defective and had embarrassing grammatical errors, but they were forced to face trial for over two years; December 7, 2011 to October 31, 2013, without any evidence. They were acquitted.
Motari was ordered to pay each of the six Sh800,000, translating to Sh4.8 million.
“There are times when a particular litigant may feel that a public officer conducted himself so flagrantly that they were acting on their own volition. In such circumstances, litigants are at liberty to sue the public officer on their own in addition to suing the Government,” stressed Ngugi.
He ruled that evidence showed that the six suffered immense trauma at being locked up and charged with disrespecting the dead. He further observed that their names were published in national dailies.
Aggrieved, Motari appealed the judgement.
It is not the first time that the court has expressed concerns over how taxpayers suffer for the evils committed by a few. Two years ago, Justice David Nderitu of the Employment and Labour Relations Court saved taxpayers from bearing the costs in an case won against the County Government of Samburu.
The judge declined to give orders on the costs incurred in the case initiated in 2022, after two suspended officials won the case.
The judge argued that awarding costs and damages to Paul Lolmingani and Linus Lenolngenje, the chair and member of the Public Service Board respectively, would have serious implications on taxpayers.
The two wanted damages for the torture they incurred, after they were wrongly suspended from office.
But Nderitu noted that the two enjoyed salaries and benefits even after suspension. “It will place a heavy burden on taxpayers for the court to award damages in those circumstances,” ruled Nderitu.
The Court of Appeal also saved taxpayers from incurring costs when the Kenya Revenue Authority lost an appeal after the introduction of a minimum tax at the rate of 1 per cent of gross turnover was declared unconstitutional.
Judges Daniel Musinga, Hellen Omondi and Kibaya Laibuta declined to award costs to the petitioners in the case: Stanley Njuguna and Kenya Association of Manufacturers.
The judges took note of the cost implications of the case which had been in court since 2021.