[1995] KECA 76 (KLR)
The Court of Appeal held that the trial judge erred in dismissing the plaintiff's suit without hearing all his witnesses, particularly as the plaintiff was unrepresented and had made efforts to secure the attendance of additional witnesses. The court emphasized that it is a fundamental principle of justice that no...
Source-derived case information.
- Citation
- [1995] KECA 76 (KLR)
- Parties
- Appellant: Hezbon Pande Nyaidho; Respondent: Robert Ondu Wambia
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 180 of 1995
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- appeal allowed; suit remitted for rehearing
- Judges
- AM Akiwumi
- Legal Topics
- Dismissal Without Hearing, Trusts in Land, Fraudulent Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezbon Pande Nyaidho
Appellant
Robert Ondu Wambia
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the trial judge erred in dismissing the plaintiff's suit without hearing all his witnesses.
- 2 Whether dismissal of the suit without full hearing constituted a miscarriage of justice.
Ratio Decidendi
The Court of Appeal held that the trial judge erred in dismissing the plaintiff's suit without hearing all his witnesses, particularly as the plaintiff was unrepresented and had made efforts to secure the attendance of additional witnesses. The court emphasized that it is a fundamental principle of justice that no case should be determined until all the evidence is heard. The premature dismissal of the suit constituted a travesty of justice and a denial of the appellant's right to a fair hearing. Consequently, the appeal was allowed, the High Court's order was set aside, and the matter was remitted for hearing before another judge.
Court Disposition
appeal allowed; suit remitted for rehearing
Orders
- The appeal is allowed.
- The High Court's order of dismissal is set aside.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT KISUMU
Civil Appeal 180 of 1995
HEZBON PANDE NYAIDHO ……………................................…………APPELLANT
AND
ROBERT ONDU WAMBIA……..………….................................…… RESPONDENT
(Appeal from the Order and Decree of the High Court of Kenya at Kisumu (Justice
Kuloba) dated 21st day of June, 1995.
IN
H.C.C.C. NO. 339 OF 1994)
**************************
JUDGMENT OF THE COURT
This is an appeal by the unsuccessful plaintiff from the decree of the superior court (Kuloba, J.) given on June 21 1995 dismissing the plaintiff’s claim.
By his plaint dated and filed on August 11, 1994 the plaintiff claims a declaration that the defendant holds a portion of about 2 hectares of land NO. WEST KISUMU/MARERA/2469 (the property) in trust for him. The plaintiff specifically pleaded fraud on the part of the defendant in getting registered as the sole proprietor of the property.
The hearing commenced on January 30, 1995 when the plaintiff gave evidence and he called four witnesses. He informed the learned judge that he wanted the assistant chief and the chief also to come and give evidence on his side. He asked for an adjournment to call them. Accordingly, the case was adjourned for the purpose. When it came up on February 7, 1995 it was adjourned as the defendant was not present and further hearing was ordered to take place on March 23, 1995. On that day the learned Judge adjourned it once again to June 21, 1995 as the defendant was for the second time not present. On that day the learned judge without hearing the further witnesses or any submissions dismissed the plaintiff’s suit on his own accord.
The appellant complains that in the circumstances the learned judge erred. It is unfortunate that such a complaint can be made against a Judge of the superior court. But with great respect we find that it is well founded. It is elementary but fundamental that no cause is won or lost until all the evidence is heard, particularly so when parties, as in this case, are unrepresented. It was clearly a travesty of justice to dismiss the plaintiff’s case without hearing his witnesses. We have no alternative but to allow the appeal and order that the case be remitted to the superior court with a direction that the same be heard in accordance with law by another judge. There will be no order as to costs.
Dated and delivered at Kisumu this 23rd day of November, 1995.
A. M. AKIWUMI
………………………
JUDGE OF APPEAL
P. K. TUNOI
………………………
JUDGE OF APPEAL
A.A. LAKHA
………………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR.