[2009] KEHC 3707 (KLR)
The court held that the death of the original judge before delivering judgment meant the trial was not concluded. Under Order 17, Rule 10 of the Civil Procedure Rules, a successor judge is empowered to take over and proceed with the suit from the stage at which the predecessor left it. The court interpreted...
Source-derived case information.
- Citation
- [2009] KEHC 3707 (KLR)
- Parties
- Plaintiff: Geminia Insurance Co. Limited; Defendant: Charles Toroitich
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 76 of 2005
- Procedural Posture
- Civil Suit / Ruling on Continuation of Trial After Judge's Death
- Outcome
- The court ordered that the successor judge take over the suit and proceed to deliver judgment.
- Judges
- AI Tullu
- Legal Topics
- Succession of Judge, Incomplete Trial, Order 17 Rule 10, Judgment Delivery, Trial Conclusion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geminia Insurance Co. Limited
Plaintiff
Charles Toroitich
Defendant
Procedural Posture
Civil Suit / Ruling on Continuation of Trial After Judge's Death
Legal Issues
- 1 Whether a successor judge can proceed with a suit where the original judge died after reserving judgment but before delivering it.
- 2 At what stage is a trial considered concluded for purposes of Order 17, Rule 10 of the Civil Procedure Rules.
Ratio Decidendi
The court held that the death of the original judge before delivering judgment meant the trial was not concluded. Under Order 17, Rule 10 of the Civil Procedure Rules, a successor judge is empowered to take over and proceed with the suit from the stage at which the predecessor left it. The court interpreted 'conclusion of trial' to include not only the hearing of evidence but also the delivery of judgment. Therefore, since judgment had not been delivered, the trial was incomplete, and the current judge could lawfully take over the proceedings, prepare, and deliver the judgment.
Court Disposition
The court ordered that the successor judge take over the suit and proceed to deliver judgment.
Orders
- Any judge at Eldoret to take over the trial of this suit to its final determination.
- The current judge takes over the hearing and will prepare and deliver the judgment.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Suit 76 of 2005
GEMINIA INSURANCE CO. LIMITED …...………………… PLAINTIFF
VERSUS
CHARLES TOROITICH ……………………………….….. DEFENDANT
R U L I N G
I have perused the record. The Late Justice Kaburu Bauni reserved the Judgment on 4. 3.08 after hearing the case. However, sadly he passed away before delivering the Judgment.
What is the way forward? Under Order 17, Rule 10 – where a Judge is prevented by death, transfer or other cause from concluding the trial of the suit or the hearing of an application, his successor may deal with any evidence taken down by him under the Rules as if such evidence had been taken down by him or under his direction and may proceed with the suit or application from the stage at which his predecessor left it.
I then asked myself at what stage is a trial concluded? From reading Stround’s Judicial Dictionary, 3rd Edition A “trial” is the conclusion by a competent tribunal of questions in issue in legal proceedings whether civil or criminal.
In Black’s Law Dictionary 7th Edition, “trial” is defined inter alia as “formal judicial examination of evidence and determination of legal claims in an adversary proceedings.”
In the light of the foregoing I am of the view that conclusion of a trial refers to full hearing and final determination of a suit. A trial includes delivering of Judgment in a civil matter. As a result the trial in this suit had not been concluded.
I therefore do order that any Judge at Eldoret do take over the trial of this suit to its final determination. I accordingly do hereby take over the hearing of the suit and proceed to prepare and deliver the Judgment.
Judgment shall be on 20th July, 2009 at 11 a.m.
DATED AND DELIVERED AT ELDORET ON THIS 13TH DAY OF MAY, 2009.
M.K. IBRAHIM
JUDGE
In the presence of:
Mr. Kibor for the Plaintiff
No appearance for the Defendant