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Paper delivered during the Induction Training workshop for the newly-appointed Judges of the Environment and Land Court of Kenya, Nairobi, 11^th October, 2012 by The Hon. Justice (Prof.) J.B. Ojwang, Justice of the Supreme Court of Kenya. ——————-
Content 1. Introduction 2. The Fact Premise 3. Legal Issues, and the Submissions of Counsel 4. Comparative Material and Case Authority 5. Assessing the Merits 6. Decrees and Orders 7. Style: Of Fact, Law, Platitude 8. Conclusion

 

 

 

 

1. Introduction

 

Dispute settlement is one of the primary governance functions in all countries and, conventionally, this mandate is entrusted to the Judicial Branch. Dispute settlement, in the scheme of governance obligations, is just as important as the law-making, or the executive and administration functions. Indeed, the judicial function is cross-cutting in its design, as the other functions invariably generate disputes which have to be resolved.

Besides, for the other departments of public power, some final settlement, and consequential tranquillity in the general social setting, is all-important. And such settlement is dependent on private disputes being legitimately resolved – by the Judiciary. Modern Constitutions, expressing the citizens’ social and political commitment, have recognized this reality: and the judicial function is invariably the backbone of the constitutional formula.

The established body of procedural law lays the threshold for the conventional hearing of the entire range of disputes: in administrative law matters; in constitutional petitions; in contracts and private civil disputes; in matrimonial and family-related matters; in probate and administration of estates; etc. Such are live contests which must be resolved methodically, timeously and with finality. This is the task of the Courts.

The end of each hearing motion is marked by the special instrument bearing the Court’s edict: judgment; ruling; decree; orders. The decisive decrees and orders ought to emerge from a clearly formulated judgment or ruling which proclaims the binding, legitimate authority of the Court and the Judicial Branch.

From this background, it is clear that the in-coming Judge should commit some time to reflection upon the essence, nature and format of the next judgment or ruling. This being the ultimate pronouncement of the Court, on a question both specific, and of immanent broader economic, social or political significance, the judgment or ruling ought to be well guided in its formulation.

2. The Fact Premise

Suitors come to Court with their pleadings, defined in Black’s Law Dictionary, 8^th ed. (2004) [p.1191] as:

“A formal document in which a party to a legal proceeding…sets forth or responds to allegations, claims, denials, or defences.”

And, as is stated in Osborne’s Concise Law Dictionary, 6^th ed (1976) [p.255],

“Every pleading must state facts and not law, it must state the material facts only and in a summary form, and it must not state the evidence by which the facts are to be proved.”

The main task of the Court is to hear the parties and their witnesses, and to ascertain the truthfulness of the evidence tendered in proof of the assertions in the pleadings. The Court, thus, relies on proven methods of adducing evidence, to ascertain the factual foundations of the suit. The facts being the Court’s primary guide in the determination of liability, must, thus, feature at an early stage in the formulation of the judgment. It should begin with a summarized account of the claim and the response, and then incorporate the proven facts, any presumed facts, and any facts emerging from judicial notice. It is the state of facts that conveys the real grievance meriting the Court’s intervention.

However, whether or not the Court should give redress will depend also on the governing law – be it in the shape of express provisions of the Constitution, or of statute law, or of recognized doctrine or principles evolved at common law or in equity. This is often a contentious question as it requires interpretations to the written law, and may involve different constructions of precedent. Hence application of the law provides the central forensic occasion, where the role of counsel is all-important. The outcome is essential building-block for the design of the judgment or ruling.

3.  Legal Issues, and the Submissions of Counsel

Since a party’s entitlement in a suit ultimately depends on the governing law, the pleadings themselves, though focused on fact, will have foreshadowed a legal principle or legal argument. It falls to counsel, after making submissions on facts, to introduce the relevant law before the Court, and demonstrate how this should affect the claim in the pleadings. Since law, legal principle and legal argument are so crucial to the fate of the case stated in the pleadings, the judgment ought to incorporate a record on the contentions on points of law.

Almost invariably, counsel will seek to buttress their legal arguments by citing and taking positions on the ratio decidendi or obiter dicta of cases emanating from other Courts, national or foreign. Any valuable aspects of such precedent-case scenarios should be incorporated in the formulation of judgment.

4.   Comparative Material and Case Authority

Scholarly articles and peer-reviewed law journals, legal text-books and case authorities, quite often, provide significant illumination to the legal argument proffered by counsel. Insofar as these bear relevance to the case, and in the measure in which the Court relies on them, the essential points should be summarized in the judgment, with due acknowledgement of source.

5.  Assessing the Merits

From the foundation and process above-described, the Court will be in a position to refocus its attention on the facts of the case, and to ascertain the merits of the claim. This is a rigorous analytical task which, however, must not be limited to a purely abstract plain: the Court ought not to take the position on fact and law which favours one party, without an unequivocal conviction founded on the merits, and formally recorded in the judgment. Here lies the justice of the case. This, indeed, is the real task of the Judge: to percipiently observe the emerging spectacle of fact and law and, on that basis, proclaim the status of right and liability.

This is not a point of novelty. In a work celebrating the contribution of the great English Judge, Lord Denning, the legitimate expression of merits in the judgment is stated to be “dependent,” as determined by the Judge – and is not foreordained by the abstract path of logic [Edmund Heward, Lord Denning: A Biography, 2^nd ed. (1997), p.215]. Lord Denning’s approach to the final determination of a case is thus stated:

“Since laws apply to laymen there is a good argument for the development of the law to be influenced by common sense as well as legal reasoning. In a doubtful case there is a strong case for use of common sense as it makes the law easier to predict and worthier of respect.”

 

The judgment, however, must carry a coherent account of the perception or selection process which led the Court to a particular finding; and this account is a crucial element in the judgment record.

6.  Decrees and Orders

Decrees specify the action-point in the judgment – same as orders, with reference to rulings. A judgment or ruling professionally rendered, with clarity and focus, readily yields forth a decree or order; indeed the parties themselves with the facilitation of the Deputy Registrar, will readily extract the decree or order.

7.   Style: Of  Fact, Law, and Platitude

It emerges that an effective judgment is one clearly and semantically rendered: beginning from essential pleadings and facts, to the law, the decree, the orders. The exact length will vary from case to case: some being lengthy, owing to complexities in the pleadings, evidence, and applicable law. Most, however, will be relatively short, as the facts are straightforward, and the applicable law is well settled.

A judgment, unlike a scholarly article, is purely pragmatic in its object; it seeks to resolve the questions emerging from the pleadings, and to adjudicate the dispute between the parties. The Court asserts the substantive right of one of the suitors, and declares the liability of the     other – attended with an award of costs. The parties shall thereafter live by the Court’s edict, save where there is a successful appeal.

This is in contrast to the academic article, the object of which is to subject an author-chosen legal question, or set of legal questions, to full light – and the more illumination, the better. This is scholarship for the purpose of better informing the general readership, without any prize being at stake. Although the Court process will certainly benefit by such inquiry, the Court will find relevant only such element as facilitates the resolution of an actual dispute between the suitors.

This principle should be accommodated in the Judge’s style – a style set for the immediate resolution of a live dispute. Such a style rules out any inclination to pontificate, or to be guided by platitudes; it is matter-of-fact; it is reserved; it is modest; it is clear-cut; it is practical. Such a judgment will focus on the parties, their pleadings and evidence, and on the relevant law and legal material. This approach is imperative firstly, in view of the controlling law of jurisdiction; and secondly, on account of the philosophy underlying the judicial function.

By the Constitution of Kenya, 2010 [Article 1(3)(c)], the sovereign power which inheres in “the people of Kenya” is delegated inter alia, to “the Judiciary and independent tribunals”: and it follows that the Judiciary can only keep faith with the people through an objective, professional resolution of matters properly brought before it. This requires dutiful adherence to the legitimate tasks of concrete dispute settlement. As a basis for such discharge of mandate, the Judiciary is to comply with the law of jurisdiction, and to determine the relevant questions on the basis of the specific facts laid before them, and of the governing law.

8. Conclusion

It can be said that the Judge, in the discharge of the judicial mandate, should conclude the task in hand by judgment that begins from the fact premise, covering the relevant points of law and setting out any authorities canvassed, before assessing the merits and making appropriate decrees or orders. The judgment should focus its attention on the matters pleaded and committed to the lawful jurisdiction, and should be rendered clearly, and with the object of resolving the immediate questions arising from the pleadings.

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