Automated Summary
Key Facts
The appeal concerned the trial court's failure to deliver the judgment with proper notice to the appellant. The court found this a breach of procedural rules, set aside the original judgment, and remitted the case for a new determination.
Issues
The court found that the trial magistrate delivered the judgment without notice to the appellant or his counsel, violating Order 21 Rule 1 of the Civil Procedure Rules. This procedural irregularity, constituting a breach of the right to be heard under the Constitution, led to the judgment being set aside as a matter of judicial duty. The remaining grounds of appeal were not addressed due to this fundamental procedural flaw.
Holdings
The court set aside the trial magistrate's judgment because it was delivered without notice to the appellant or his counsel, violating the Civil Procedure Rules and principles of natural justice. The case is remitted for redetermination by another magistrate, and each party is to bear their own appeal costs.
Remedies
- The court sets aside the judgment due to irregularity in its delivery without proper notice to the parties.
- The case is remitted to a magistrate of competent jurisdiction for redetermination.
- The court orders that each party bear their own costs of the appeal.
Legal Principles
The court held that failure to provide notice of judgment delivery under Order 21 Rule 1 constitutes a fundamental breach of natural justice and due process. Such procedural irregularity requires the judgment to be set aside ex debito justitiae to uphold judicial integrity.
Precedent Name
- CRAIG vs. KANSEE
- ISAACS vs. ROBERTSON
- NGOSO GENERAL STORE LTD vs. JACOB GICHUNGE
- MPEPLESIL vs. REPUBLIC
Cited Statute
Civil Procedure Rules
Judge Name
F. Gikonyo
Passage Text
- The law under Order 20 r 1 is explicit in terms and mandatory in tone. A judgment which is not delivered ex tempore must be delivered on a subsequent date only upon notice being given to all parties or their advocates.... an order.... directing the party in attendance to inform the other side does not cure the fragrant breach of a mandatory procedural rule which accords with fundamental rules of natural justice and the right to be heard which our Constitution safeguards.
- Therefore, I do not consider the requirement in Order 21 rule 1 of the Civil Procedure Rules a trifle; but a matter of a fundamental nature and of due process. Thus, any judgment delivered without notice to the parties is completely irregular and should be set aside by the court as a matter of judicial duty to uphold the integrity of the judicial process itself- ex debito justitiae.
- What does the record say? I have consulted and perused the record and no notice of the delivery of judgment that was given to the Appellants as required by Order 21 rule 1 of the Civil Procedure Rules. The record shows that... the judgment was delivered on 9th March 2012 only in the presence of Mr Mokuawho holding brief for Mosota for the Plaintiff. Of significance is that there is nothing to show that notice of delivery of judgment was given to any of the defendants or their respective counsels.