Maltauro Construction Co. Ltd v Sermetey Enole Sordo [2015] KEHC 1776 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CIVIL  APPEAL NO. 22 OF 2015

FORMERLY NAKURU HCCA NO. 117 OF 2014

(Being an appeal from a Judgment of the CM’S Court (W. N. Njage, SPM) dated 27th June 2013 in Civil Case No. 178 of 2010)

MALTAURO CONSTRUCTION CO. LTD.………..APPELLANT

VERSUS

SERMETEY ENOLE SORDO………………….RESPONDENT

J U D G M E N T

This appeal emanates from the decision of W. N. Njage (then Senior Principal Magistrate Narok) delivered on 27th June 2013 by his counterpart C. A. Nyakundi Ag. Principal Magistrate.

Briefly, the Respondent acting as the legal representative of the estate of the deceased, Tipapa Sordo, had brought a suit for compensation under the Law Reform Act and the Fatal Accidents Act.  The claim arose from a fatal road accident on 24th November 2009 along Narok-Nairobi Road.  A pedestrian, Tipapa Sordo sustained fatal injuries after allegedly been knocked down by the vehicle KAM 394Z owned by the Appellants and then being driven, allegedly in a negligent manner, by their servant.

The original record shows that parties recorded a consent on liability and proceeded with the trial on the question of quantum.  Commencing on 30/10/2012, the trial concluded on 20/12/2013, when submissions were filed and judgment set for 18/12/2012.  On 19th December, 2012 the trial magistrate indicated that the judgment was not ready and set a new date for delivery of judgment on 19/2/2013.  On the latter date, there was no recorded proceeding and neither was the judgment delivered.  The judgment, eventually delivered on behalf of the trial magistrate by C. A. Nyakundi Senior Resident Magistrate, on 27th June, 2013 is signed but not dated.

In the judgment, the sum of Kshs. 2,204,000/= was awarded to the Respondent, as well as costs.  The validity of the judgment is the key plank raised in the Appellant’s appeal and submissions.  This is because, subsequent to the close of the trial, the trial magistrate was rendered unfit to continue in office pursuant to the determination of the Judges and Magistrates Vetting Board dated 14th March 2013.

The Appellants have contended that the magistrate wrote the judgment after the said date and hence it is void abinitio,pursuant to the provisions of Section 21 of the Vetting of Judges and Magistrates Act of 2011.  For her part, the Respondent argues that the judgment was written before the decision of the Vetting Board and properly delivered by the succeeding magistrate.  She asserts that the judgment is proper.

As earlier observed, the date of the writing of the judgment is not indicated thereon.  The delivery date is undeniably 27th June, 2013, by which date the trial magistrate had ceased to be a judicial officer.   There is no evidence therefore to support the Respondent’s assertion that the judgment read on 27th June 2013 was written before 14th March 2013, the date of the Vetting Board’s decisions removing the trial magistrate.

Order 21 Rule 1 of the Civil Procedure Rules provide that:

“In suits where a hearing is necessary, the court, after the case has been heard, shall pronounce judgment in open court, either at once or within sixty days from the conclusion of the trial notice of which shall be given to the parties or their advocates.

Provided that where judgment is not given within sixty days the judge shall record reasons thereof copy of which shall be forwarded to the Chief Justice and shall immediately fix a date for judgment.”

In this case, the judgment of the court was delayed by over 6 months since the close of the trial.  In the absence of evidence to the contrary, it is reasonable to presume that the delay was caused by the fact that it was not ready.  Assertions by the Respondent that the trial magistrate was on leave from 19/2/2013 the date to which he had postponed the judgment, are not supported by the record, and fly in the face of the fact that this date was assigned by the said magistrate himself.

The controversy surrounding the impugned judgment is not insignificant as it goes to the validity of the judgment. Due to the period and circumstances in which the trial magistrate was removed from office, and the late date of delivery, it seems to me more likely that the judgment was written after the removal, rather than before. In the interest of the administration of justice, it is not proper that such a controversial judgment that also involves a fairly high award should be allowed to stand.

I am alive to the long delay occasioned to the parties in this matter, but in order to protect the integrity of the court process, I will set aside the impugned judgment.  Consequently, I order that the record of the lower court be remitted back to Chief Magistrate’s Court Narok, with the direction that, the Chief Magistrate Narok prepares and delivers a fresh judgment in accordance with the provisions of Order 18 Rule 8 (1) of the Civil Procedure Rules.

Such judgment to be delivered within the timelines set under Order 21 Rule 1 of the Civil Procedure Rules to obviate further delays.  Needless to say, this court will therefore not pronounce itself on the substantive questions raised on this appeal.  The appeal has been allowed on the first ground.  Costs of the appeal will abide the outcome of the lower court decision.

Delivered and signed at Naivasha this23rd day ofOctober,2015.

In the presence of:

For Appellants

For Respondents

Court Assistant    Stephen

C. W. MEOLI

JUDGE