Owino v Madowo

High Court, at Kisumu October 13, 1987

Nyarangi, Apaloo JJA & Masime Ag JA

Civil Appeal No 93 of 1986

(Appeal from the High Court at Kisumu, Butler-Sloss J)

Civil Practice and Procedure – judgment – meaning of judgment – stage at which judgment may be given in a suit – judgment given before completion of plaintiff’s case and before the defence’s case – whether such judgment proper

The respondent filed an action for defamation against the appellant in the High Court to which the appellant filed a defence. Agreed issues were recorded and later the trial commenced.

Two adjournments occurred and on the resumed hearing, the record showed that the defence put one question to the plaintiff in crossexamination which was disallowed by the court as irrelevant. The court then recorded that a ruling was to be delivered at 2.30 pm. When the sitting resumed, however, the trial judge delivered judgment and awarded the plaintiff Shs 10,000 with costs. The appellant appealed.

Held:

1. A judgment is the official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination. It is the final decision of the court which resolves the dispute and determines the rights and obligations of the parties.

2. The judgment of the trial judge was wholly irregular because the case was still proceeding. The plaintiff had not completed his case and the defendant had produced no evidence at all.

3. The judge had erroneously assumed that he could prepare a judgment at that stage and in his judgment, he did not even consider the issues which had been agreed upon.

Appeal allowed, suit remitted to High Court for hearing de novo before a different judge.

Cases

No cases referred to.

Texts

Black, HC (1979) Black’s Law Dictionary St Paul Minnesota: West

Publishing Co 5th Edn

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XVIII