Abutalib Musajee t/a Alison Builders v Al-Maamiry (Civil Appeal 692 of 2016)  KEHC 14979 (KLR) (Civ) (8 November 2022) (Ruling)
Neutral citation:  KEHC 14979 (KLR)
Republic of Kenya
Civil Appeal 692 of 2016
JN Mulwa, J
November 8, 2022
Abutalib Musajee t/a Alison Builders
((Being an appeal against the Judgement and Decree of the Chief Magistrate's Court at Nairobi in CMCC No. 1347 of 2005 delivered by Hon. Chesang (RM) on 18th July 2016)
1.The appellant sued the respondent in Milimani CMCC No 1347 of 2005 vide a plaint dated February 19, 2001 and amended on August 8, 2002. The appellant sought judgment against the respondent for a total sum of Kshs 912,114/- comprising of: Kshs 760,095/- being the balance of the cost of construction services rendered; and, Kshs 152,019/- pursuant to an alleged agreement dated January 23, 1999 through which the respondent agreed to pay as damages, 20% of the value of any dishonoured cheque. He also sought costs of the suit together interest at 14% per annum from July 30, 1999 till payment in full.
2.The respondent denied the appellant’s claim in her amended statement of defence dated January 20, 2005.
3.After trial, the trial magistrate dismissed the appellant’s claim. Aggrieved by the said judgment, the appellant lodged the instant appeal vide a memorandum of appeal dated November 10, 2016 on the following grounds:1.The learned magistrate failed to familiarize herself with the long drawn out litigation, pleadings, submissions and authorities relied upon in arriving at her decision.2.The learned magistrate failed to critically analyze the evidence.3.The learned magistrate did not appraise herself of the contents of Plaint, the nature of the claim and defence put forward.4.The learned magistrate failed to write a judgment in accordance with order 21 rule 4 and 5 of the Civil Procedure Rules.5.The learned magistrate failed to appreciate that the parties had a binding oral agreement and a completion exercise undertaken and secured with postdated cheques amounting to Kshs 760,095/=.6.The trial magistrate completely failed to give efficacy to the agreement on returned cheques agreed at 20% of their value of Kshs 152,019/=.7.The learned magistrate failed to appreciate that the claim was based on dishonored cheques and that it was not rebutted.8.The learned magistrate found as a fact that the appellant was presented with dishonored cheques but failed to give judgment for the said total sum.9.The learned magistrate failed to distinguish the claim for the value of the returned cheques at 20% value, and failed to separate the same from the sum of Kshs 760,095/= but instead lumped them together in dismissing prayer (a) contrary to her own findings that the respondent presented the appellant with cheques that were dishonoured.10.The learned magistrate thus erroneously awarded unascertained bank charges as arising from the dishonored cheques that was not part of the claim.11.The learned magistrate thus erred in making findings unconnected to the pleadings and evidence adduced and arrived at an erroneous decision.
4.I have carefully looked at the record of appeal and parties’ respective submissions. Before proceeding to evaluate the evidence afresh as is required of this court in the exercise of its appellate jurisdiction, I find it necessary to determine one core issue relating to the contents of the judgment delivered on July 18, 2016. This is because the answer to this issue might determine this appeal in limine without the need to delve into the merits of the appeal.
5.The appellant contended that the trial magistrate delivered a judgment that did not accord with the provisions of order 21 rule 4 and 5 of the Civil Procedure Rules hence it should be set aside ex-debito justitiae. In his submissions however, he urged that the matter should not be sent back for retrial due to the passage of time. On the other hand, the respondent contended that the judgment was concise and the magistrate followed due process until its delivery.
6.Order 21 rule 4 of the Civil Procedure Rules provides as follows on judgments:
7.I have perused the brief judgment of Hon Chesang. It is a one-page judgment that contains four brief paragraphs and six brief statements as follows:JudgmentBefore me is a plaint dated August 8, 2002 seeking the orders on the face of the plaint and a defence denying the allegation on record and putting the plaintiff to strict proof thereof. The alleged agreement between parties herein was oral and therefore it is difficult for me to ascertain its exact provisions. However, it is clear that the defendant presented the plaintiff with dishonored cheques.The plaintiff has failed to justify its claim for 20% some of the value of the dishonored cheques and therefore prayers (a) of the plaint is denied.The plaintiff is only entitled to the bank charges arising from the dishonored cheques together with interest at court rates from the date of the said dishonor till payment in full.The award shall also carry costs of the suit.Delivered and dated this July 18, 2016.Hon M Chesang(Mrs)Resident MagistrateJune 18, 2016
8.From the above extract, it is glaringly clear that the trial magistrate did not give a concise statement of the case, the points for determination, the decision thereon and the reasons for the decision. No reference was made to the pleadings by both parties, the prayers sought in the plaint filed by the appellant, nor the parties’ respective evidence and/or submissions. This is despite the fact that parties filed fairly lengthy pleadings and submissions and the claim was prosecuted and defended in equal measure. The judgment was too scanty and did not meet the threshold of a valid judgment under order 21 rule 4 of the Civil Procedure Rules.
9.In South Nyanza Sugar Co Ltd v Omwando Omwando  eKLR, Makhandia J observed as follows upon encountering a similar judgment:
10.What then should this court do?
11.Being a first appellate court, section 78 of the Civil Procedure Act empowers this court to do the following: determine the case finally; or remand the case; or frame the issues and refer them for trial; or take additional evidence or require such additional evidence to be taken; or order a new trial. Having found that there was no valid judgment by the trial court, it follows that there is no decision that this court can consider in the appeal. In the premises, it will be unnecessary to consider the other grounds of the appeal.
12.For the foregoing, the order that best commends itself is an order for retrial. The defective judgment is accordingly set aside and vacated. It is hereby substituted with an order that the case be remitted back to the Milimani Chief Magistrate’s Court for a fresh judgment writing on the basis of the evidence on record by any other magistrate save for Hon Chesang, as the Chief Magistrate may assign, on priority basis due to the age of the case.
13.As these proceedings were occasioned by an error on the part of the trial court, it is directed that each party bears on costs on both the primary case and on this appeal.Orders accordingly.
DELIVERED DATED AND SIGNED AT NAIROBI THIS 8TH NOVEMBER, 2022.J N MULWAJUDGE.