Kung'u Muigai challenges Judges, JSC over 443-acre Kiambu farm loss

The High Court has referred to Chief Justice Martha Koome a petition filed by businessman Kung’u Muigai and his two companies against eight senior judges and the Judicial Service Commission (JSC), over the loss of a 443-acre coffee estate in Kiambu County.

On Wednesday, Justice Bahati Mwamuye directed that the file be transmitted to the Chief Justice for empanelling an uneven-number bench to determine the matter, after finding that it raises weighty constitutional questions that cannot be handled by a single judge.

“Since the respondents (eight Judges and JSC) have not objected, I find that the petition herein raises serious constitutional issues under Article 165 of the Constitution and is referred to the Chief Justice, to appoint an uneven number of judges to hear and determine it,” ruled Justice Mwamuye.

This is after the eight judges and JSC through lawyer Peter Wanyama did not oppose the application by petitioners to have the case forwarded to CJ Koome. The 230-page petition has been filed by Kung’u, Benjoh Amalgamated Limited and Muiri Coffee Estate Limited.

Kung’u and the two firms accuse Supreme Court Justices Mohamed Ibrahim, Njoki Ndung’u, Isaac Lenaola and Court of Appeal Justices Milton Makhandia, Kathurima M’Inoti, Sankale ole Kantai, Francis Tuiyott and John Mativo of relying on what they term a non-existent 1992 consent decree to uphold the sale of their Kiambu farm by Kenya Commercial Bank (KCB).

They have sued eight senior judicial officers in their personal capacities, an extraordinary move aimed at testing the scope of judicial immunity in Kenya.

The JSC is also sued for allegedly shielding the judges by dismissing complaints against them without disclosing their responses or giving a reasoned decision.

According to the court papers, the judges are accused of relying on what the petitioners describe as a non-existent consent decree allegedly recorded in 1992, which allowed Kenya Commercial Bank (KCB) to sell L.R. No. 10075 Kiambu, a 443-acre coffee farm, to recover a debt owed by the companies.

At the heart of the dispute is a contested 1992 consent decree that the petitioners claim was never signed or recorded and which paved the way for auction of the land. “Kungu and his companies contend that no consent was ever signed or recorded on May 4,1992, yet the eight judges who handled the dispute have consistently relied on that purported decree to uphold the sale of their 443-acre coffee farm in Kiambu County,” the petition states in part.

The dispute dates back more than 30 years. Benjoh Amalgamated and Muiri Coffee Estate had charged their properties, including the 443-acre farm, to KCB as security for credit facilities. When the bank moved to exercise its power of sale, the companies went to court where they filed a petition number 1219 of 1992 to challenge the move.

Central to the litigation has been a purported consent order dated  May 4, 1992. The petitioners insist that no such consent was executed by them, and say an earlier High Court ruling found no valid consent on record.

They now accuse the eight judges of later decisions that treated that non-existent consent as a binding decree, clearing the way for the auction of the farm. They allege that judges acted in “bad faith” by upholding this decree, leading to the unlawful auction of their land. The case challenges the scope of judicial immunity under Article 160 of the Constitution, arguing that judges who engage in unlawful conduct should not be shielded from legal consequences.

According to Kung’u ’s legal team led by Nelson Havi, Muiri Coffee Estates Limited owned the land, while Benjoh Amalgamated Limited had offered titles of two other properties as security for credit facilities.

The petitioners claim KCB relied on a fabricated May 4, 1992, consent decree to justify the sale. In 1997, Justice Erastus Githinji reportedly ruled that no such consent existed. However, a 1998 appellate bench of three judges overturned this decision, a ruling the petitioners now call into question, noting that all three judges later faced queries related to their suitability to serve in the Judiciary.

Despite subsequent appeals, later benches, including Justices Isaac Lenaola (2004), Milton Asike-Makhandia, Kathurima M’Inoti, Sankale Ole Kantai, and John Mativo (2017, 2024), reaffirmed KCB’s position based on the disputed decree, resulting in the loss of the land.

The petitioners argue these rulings lacked evidence and violated their constitutional rights to property (Article 40), fair administrative action (Article 47), and a fair hearing (Article 50).

Lawyer Havi contends that judicial immunity must be transformatively interpreted to exclude manifestly illegal, unconstitutional, and unlawful acts. He questions whether Kenyans should bear losses caused by judicial impunity without recourse.

The petitioners accuse the JSC of failing to investigate their complaints, despite submission of a petition between October 2024 and August 2025. On August 7, 2025, the JSC dismissed their petitions without explanation, raising concerns over judicial accountability.

The petition argues this undermines constitutional oversight, violating Articles 172 (judicial accountability) and 50 (fair hearing).

“The JSC’s refusal to probe these allegations or disclose the judges’ responses undermines constitutional oversight,” the petition argues. Central to the case is whether judicial immunity under Article 160(5), which protects judges for actions taken in good faith extends to unlawful conduct.

The petitioners assert that reliance on a non-existent decree constitutes unlawful judicial function and should not be shielded.

“The petitioners have suffered irreversible loss of prime agricultural land on the strength of a consent decree that was never signed, never adopted, and does not exist as a matter of fact,” their lawyer Havi argues.

In their lawsuit, the businessman and the two companies seek declarations that the 1992 consent decree is invalid, that the judges violated constitutional rights, and that the JSC neglected its oversight duties.

Additionally, they demand clarity on whether judicial immunity covers unlawful acts.