Criminal practice and procedure-appeal-consolidated appeal-where the appellants had been charged and convicted on two counts of robbery with violence and being in possession of a firearm-whether the trial magistrate considered the evidence and their defence-whether the appeal had merit-Penal Code section 296 (1); Firearms Act section 43 (3)

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

Karanja v Kanyuira

High Court, at Nairobi

July 30, 1982

Masime J

Civil Case No 1965 of 1979

Partnership - membership of - statutory limit of - provisions of the Partnership Act - business objective - twenty one persons – preliminary objection - whether membership exceeding statutory limit – whether association legal - whether suit maintainable - Partnership Act, Cap 29.

Nineteen individuals, eighteen of whom were described as businessmen and one of whom was the personal legal representative of a deceased person, brought a suit in which they alleged that they, together with the two defendants, had in 1953 agreed to form an association with the objective of acquiring and developing properties and carrying on business in Nairobi. It was further stated that these members had contributed some original capital towards meeting this objective.

The defendants raised both in the pleadings and by way of a preliminary objection the point that the alleged association, being one composed of the twenty one persons in total, was illegal for exceeding the limit on membership imposed by the Partnership Act. In response, the plaintiffs alleged that the claim was derived not from the association but from the individuals themselves.

Held:

1. There was nothing in the pleadings to show that the individual plaintiffs were distinct from the association as alleged;
2. The association was illegal for exceeding the statutory limit on membership in accordance with the Partnership Act (Cap 22).

Preliminary objection allowed and suit struck out.

Cases

1. Fort Hall Bakery Supply Co v Fredrick Muigai Wangoe [1958] EA 118 Approved & Applied

Statutes

1. Partnership Act (Cap 29)

Advocates

Mr Kamau for Plaintiffs