In a three-decade legal battle, a businessman and two companies have sued eight senior judges for allegedly relying on a non-existent court order that allowed KCB to sell a 443-acre coffee farm in Thika to recover unpaid debt.
The Judicial Service Commission (JSC) has also been sued for allegedly shielding judicial officers from accountability.
The petition, filed at the High Court in Nairobi by businessman Kung’u Muigai, Benjoh Amalgamated Limited and Muiri Coffee Estate Limited, seeks an order compelling the JSC to disclose its proceedings and reasons for dismissing their complaint against the judges’ conduct.
The judicial officers – including Supreme Court justices Mohamed Ibrahim, Njoki Ndung’u, and Isaac Lenaola, as well as Court of Appeal judges Milton Asike Makhandia, Kathurima M’Inoti, Sankale Ole Kantai, Francis Tuiyott and John Mativo – have been sued in their personal capacities, in an unprecedented attempt to lift their judicial immunity.
At the heart of the dispute is a contested 1992 consent decree which the petitioners claim was neither signed nor recorded.
They allege that the judges acted in ‘bad faith’ by upholding this decree, which led 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.
The dispute dates back to 1992, when KCB moved to auction the petitioners’ property due to an alleged loan default.
According to Mr Muigai’s legal team, Muiri Coffee Estates Limited owned the land, while Benjoh Amalgamated Limited had offered titles to two other properties as security for credit facilities.
The petitioners claim that KCB relied on a fabricated consent decree dated May 4, 1992 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 which the petitioners are now questioning, 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 (in 2017 and 2024) – reaffirmed KCB’s position based on the disputed decree, resulting in the loss of the land.
The petitioners argue that these rulings lacked evidence and violated their constitutional rights to property (Article 40), fair administrative action (Article 47), and a fair hearing (Article 50).
Their advocate contends that judicial immunity must be ‘transformatively interpreted’ to exclude ‘manifestly illegal, unconstitutional, and unlawful acts.’ The advocate questions whether Kenyans should bear losses caused by judicial impunity without recourse.
The petitioners accuse the JSC of failing to investigate their complaints despite submitting 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 that this undermines constitutional oversight, and violates 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.
They are seeking 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.
The case has been filed under a certificate of urgency and requests a three-judge bench to address these ‘substantial and novel’ constitutional issues. The matter is scheduled for mention on November 26, 2025, to confirm responses and set hearing directions.