[2014] KEHC 7550 (KLR)
The court held that since all three judges who heard the petition are still in judicial service, with only one serving outside Nairobi, the interests of justice dictate that the same bench should be recalled to determine the appropriate course of action. No other judge or judges have lawful authority to re-hear the...
Source-derived case information.
- Citation
- [2014] KEHC 7550 (KLR)
- Parties
- Petitioner: Joseph Mbui Magari; Respondent: Kenya Anti-Corruption Commission; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 328 of 2007
- Procedural Posture
- Constitutional Petition / Post Hearing, Pre Judgment Directions
- Outcome
- Matter referred to original bench for further orders and directions.
- Judges
- I Lenaola
- Legal Topics
- Judicial Bench Composition, Judgment Delivery, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mbui Magari
Petitioner
Kenya Anti-Corruption Commission
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Post Hearing, Pre Judgment Directions
Legal Issues
- 1 Whether a new judge or bench can lawfully deliver judgment when the original bench is unavailable.
- 2 What procedure should be followed when the judges who heard a matter are transferred but remain in service.
Ratio Decidendi
The court held that since all three judges who heard the petition are still in judicial service, with only one serving outside Nairobi, the interests of justice dictate that the same bench should be recalled to determine the appropriate course of action. No other judge or judges have lawful authority to re-hear the matter or deliver judgment based solely on the submissions on record. The matter is therefore to be placed before the presiding judge of the original bench for further orders and directions.
Court Disposition
Matter referred to original bench for further orders and directions.
Orders
- The matter shall be placed before Waweru J., presiding judge of the original 3-judge bench, on 24/1/2014 for further orders and directions.
- No other judge or judges shall re-hear or deliver judgment based on the submissions on record.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
Petition No.328 Of 2007
Between
Joseph Mbui Magari...............….........................................Petitioner
And
Kenya Anti-Corruption Commission....................1st Respondent
The Hon. Attorney General………….......…….......2nd Respondent
RULING
The Petition herein was heard by Waweru, Kimaru and Sitati, JJ and after Submissions were concluded on 14/11/2009, the learned Judges retired to consider the matter and deliver their judgment. Sadly, to date no judgment has been delivered and on 24/7/2013, Waweru J. sitting alone in Chambers gave directions to the effect that the Bench was unable to deliver any judgment as all the Judges in it had been transferred “out of Nairobi to different parts of the Country”. He therefore directed the file to be placed before a Judge in the Constitutional and Human Rights Division for further directions and on 13/1/2014, Majanja J. referred it to me.
On 14/1/2014 after hearing advocates appearing for the parties, I decided to make a Ruling on what should be done to finalise the matter.
Having now perused the file and on hearing what the parties had to say, my mind is clear that;
i) Since all the three Judges who heard the matter are still in service and only one is serving outside Nairobi, the interests of justice would dictate that the same Bench should be recalled to determine what should be done in the circumstances now obtaining.
ii) No other Judge or Judges has any lawful authority to re-hear the matter and/or deliver a judgment based on the Submissions on record.
In the event, let this matter be placed before Waweru J. the Presiding Judge of the 3-Judge Bench, on 24/1/2014 for Further Orders and Directions.
Orders accordingly.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 21ST DAY OF JANUARY, 2014
ISAAC LENAOLA
JUDGE
In the presence of:
Irene – Court clerk
Mr. Wando holding brief for Mr. Too for 1st Respondent
Mr. Mogeni holding brief for Mr. Bowry for Petitioner
Miss Spira holding brief for Mr. Njogu for 2nd Respondent
Order
Ruling duly delivered.
ISAAC LENAOLA
JUDGE