[1997] KECA 209 (KLR)
The Court of Appeal held that the trial judge erred in law by terminating the plaintiff's case after hearing only one witness, without allowing cross-examination or the calling of additional witnesses. The judge's conduct denied the plaintiff the right to a fair hearing as required by the Civil Procedure Rules and...
Source-derived case information.
- Citation
- [1997] KECA 209 (KLR)
- Parties
- Appellant: Juma Mohamed Tuwano; Respondent: Mohamed Hamisi Mwabwaguzi; Respondent: Salim Hamisi Mwabwaguzi; Respondent: Masudi Mwachibuko Mwabwaguzi; Respondent: Salim Abdulrahim Mwabwaguzi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 156 of 1996
- Procedural Posture
- Civil Appeal / Judgment on Appeal From High Court Ruling
- Outcome
- appeal allowed
- Judges
- RO Kwach, AM Akiwumi, AB Shah
- Legal Topics
- Right to Be Heard, Procedure for Taking Evidence, Judicial Impartiality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Juma Mohamed Tuwano
Appellant
Mohamed Hamisi Mwabwaguzi
Respondent
Salim Hamisi Mwabwaguzi
Respondent
Masudi Mwachibuko Mwabwaguzi
Respondent
Salim Abdulrahim Mwabwaguzi
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal From High Court Ruling
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 evidence fully heard.
- 3 Whether the proceedings should be set aside and the case heard de novo.
Ratio Decidendi
The Court of Appeal held that the trial judge erred in law by terminating the plaintiff's case after hearing only one witness, without allowing cross-examination or the calling of additional witnesses. The judge's conduct denied the plaintiff the right to a fair hearing as required by the Civil Procedure Rules and principles of natural justice. The appellate court emphasized that a judge cannot decide a suit without hearing all parties properly and must ensure that evidence of witnesses in attendance is taken under personal direction and superintendence. Consequently, the appeal was allowed, and the matter was ordered to be heard de novo before a different judge.
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs.
- The suit in the superior court to be heard de novo by another judge.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: KWACH, AKIWUMI & SHAH JJ.A.)
CIVIL APPEAL NO. 156 OF 1996
BETWEEN
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. 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's 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 XVII 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