[1997] KECA 92 (KLR)
The Court of Appeal found that the trial judge erred in law by terminating the plaintiff's case prematurely, after hearing only one witness who was not cross-examined and without allowing the plaintiff to call his remaining witnesses. This conduct was contrary to Order XVII rule 4 of the Civil Procedure Rules, which...
Source-derived case information.
- Citation
- [1997] KECA 92 (KLR)
- Parties
- Appellant: Juma Mohamed Tuwano; Respondent: Mohamed Hamisi Mwabwagizo; Respondent: Salim Hamisi Mwabwagizo; Respondent: Masudi Mwachibuko Mwabwagizo; Respondent: Salim Abdulrahim Mwabwagizo
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 156 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Right to Be Heard, Procedure for Hearing, Judicial Conduct, Order Xvii Rule 4, Trial Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Mohamed Tuwano
Appellant
Mohamed Hamisi Mwabwagizo
Respondent
Salim Hamisi Mwabwagizo
Respondent
Masudi Mwachibuko Mwabwagizo
Respondent
Salim Abdulrahim Mwabwagizo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial judge erred by terminating the plaintiff's case before all witnesses were heard.
- 2 Whether the plaintiff was denied the right to call additional witnesses and to have his case fully heard.
- 3 Whether the proceedings were contrary to Order XVII rule 4 of the Civil Procedure Rules.
Ratio Decidendi
The Court of Appeal found that the trial judge erred in law by terminating the plaintiff's case prematurely, after hearing only one witness who was not cross-examined and without allowing the plaintiff to call his remaining witnesses. This conduct was contrary to Order XVII rule 4 of the Civil Procedure Rules, which mandates that a judge must take the evidence of all witnesses in attendance under his personal direction and superintendence. The court emphasized that justice requires all parties to be heard fully and that a judge cannot arbitrarily stop a party from presenting their case. The denial of the opportunity to call further witnesses amounted to a breach of the right to a fair...
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs.
- The suit in the superior court is to be heard de novo by another judge.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT MOMBASA
Civil Appeal 156 of 1996
JUMA MOHAMED TUWANO ………………………………............................................…….APPELLANT
AND
1. MOHAMED HAMISI MWABWAGIZO
2. SALIM HAMISI MWABWAGIZO
3. MASUDI MWACHIBUKO MWABWAGIZO
4. SALIM ABDULRAHIM MWABWAGIZO …………….....................................……RESPONDENTS
(Appeal from Ruling and decree of the High Court of Kenya at Mombasa
(Wambilyangah J.) dated 13th September, 1995
IN
H. C. C. C. NO. NO. 1 OF 1991
*************************
JUDGMENT OF THE COURT
Justice must only be done, but must manifestly be seen to be done. However weak a plaintiff’s case may sound to a judge the judge cannot stop the plaintiff is case half-way through. There was evidence that the plaintiff had three more witnesses to call. Mr. Khaminwa argues that the learned judge acted improperly by terminating the proceedings after hearing only one witness (the Plaintiff) who was not even cross-examined. Order XV11 rule 4 of the civil Procedure Rules requires a judge to see to it that evidence of witnesses in attendance is taken under his personal direction and superintendence. He has to take down the evidence of each witness in writing . He cannot tell the plaintiff “I do not like your case, I will hear you no more”, when the plaintiff makes it clear that he still has three witness to call.
Mrs. Ndegwa for the respondent agrees that the plaintiff was not cross-examined and that the plaintiff was not allowed to call his witness.
A judge can only decide a suit after hearing all parties properly. In all the circumstances we allow this appeal with costs and order that the suit in the superior court be heard, by another judge, de novo.
Dated and delivered at Nairobi this 9th day of May, 1997.
R. O. KWACH
…………………
JUDGE OF APPEAL
A.M. AKIWUMI
……………………..
JUDGE OF APPEAL
A. B. SHAH
……………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR