Elizabeth Braganza v Tysons Habenga Limited [1998] KECA 145 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(CORAM: AKIWUMI, TUNOI & SHAH, JJ.A.)

CIVIL APPEAL NO. 285 OF 1997

BETWEEN

ELIZABETH BRAGANZA .................................. APPELLANT

AND

TYSONS HABENGA LIMITED ..............................RESPONDENT

JUDGMENT OF TUNOI, J.A.

(Appeal from a Judgment of the High Court at Nairobi (the Honourable Justice Lady Owuor) given on 16th day of

October, 1997

in

H.C.C.C. NO. 105 OF 1991)

*******************

I have had the advantage of reading the judgment of Shah,J.A. with which I agree.

I add my views only on the way the learned Judgeconducted this case. Mr. Goswami, counsel for the appellant,

invited our attention to the fact that the learned Judge tooknearly 15 months to deliver the judgment and delivered the

same only after some more than 30 vain attendances by theappellant's advocates. He submitted that this long delay

resulted in the learned Judge making material findings whichwere not justified by the evidence on record.

Delay in delivering judgment may arise due to a varietyof reasons but is solely the responsibility of the judge whoheard the case. What constitutes delay, however, depends onthe particular circumstances of each case.

In this case the delay was too inordinate and should nothave occurred unless there were compelling reasons which thelearned Judge should have explained in the judgment. Nodoubt, by the time she wrote her judgment, human as she is,the learned Judge lacked the "feel" of the case. Also, thelength of time between hearing the case and writing ofjudgment gave rise to suspicion that a miscarriage of justicead occurred through submissions being forgotten or lost.

Again, it has been suggested that due to incessantcomplaints over the delay by the appellant's counsel thejudgment was vindictive. It cannot be gainsaid that thisconduct of the learned Judge in delaying the delivery of herjudgment added great weight to the substance of the appeal,and together with the forceful and persuasive submissionsofthecounsel for the appellant, resulted in the reversal ofjudgment in the appeal.

For these reasons and the reasons given in Shah, J.A.'sjudgment, I would allow this appeal and grant the reliefssuggested by Shah, J.A.

Dated and delivered at Nairobi this 20th day of March,1998.

P. K. TUNOI

...............

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR