[2019] KEHC 4874 (KLR)
The court found that the judgment of the Co-operative Tribunal, which was the subject of the appeal, was not dated, signed, or attributed to any specific panel members. This omission rendered the judgment a nullity under Order 21 of the Civil Procedure Rules, which requires that judgments be dated and signed at the...
Source-derived case information.
- Citation
- [2019] KEHC 4874 (KLR)
- Parties
- Appellant: Nembu Farmers Co-Op Society Ltd; Respondent: Gathage Farmers Co-Op Society Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 229 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal remitted to the Tribunal; no valid judgment to uphold or overturn.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Judgment Validity, Tribunal Procedure, Signature and Dating Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nembu Farmers Co-Op Society Ltd
Appellant
Gathage Farmers Co-Op Society Ltd
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the judgment of the Co-operative Tribunal was valid in the absence of date, signatures, and names of the panel members.
- 2 Whether the appeal could be determined in the absence of a valid judgment from the Tribunal.
Ratio Decidendi
The court found that the judgment of the Co-operative Tribunal, which was the subject of the appeal, was not dated, signed, or attributed to any specific panel members. This omission rendered the judgment a nullity under Order 21 of the Civil Procedure Rules, which requires that judgments be dated and signed at the time of pronouncement. Without these essential particulars, there was no valid judgment capable of being appealed or executed. Consequently, the High Court could not proceed to determine the merits of the appeal. The matter was remitted to the Tribunal to either write a proper judgment based on the existing record or, at the parties' election, to hear the dispute de novo. No...
Court Disposition
Appeal remitted to the Tribunal; no valid judgment to uphold or overturn.
Orders
- The file is returned to the Co-operative Tribunal for either the writing of a valid judgment or a rehearing of the dispute de novo, as the parties may elect.
- No execution shall issue as there is no valid judgment on record.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NUMBER 229 OF 2005
NEMBU FARMERS CO-OP SOCIETY LTD...................................APPELLANT
VERSUS
GATHAGE FARMERS CO-OP SOCIETY LTD............................RESPONDENT
(Being an appeal form the judgment of the Co-operative Tribunal at Nairobi
delivered on the April, 2005 in Tribunal case No. 8 of 2004
Nembu FCS LTD Vs Gathage FCS LTD)
J U D G M E N T
This appeal arises from the decision of Co-operative Tribunal which was delivered on 6th April, 2005 at Nairobi. The appeal was before Otieno J, on 4th September, 2018 whereby the judge made directions that parties file written submissions, subject to highlighting of the same on 16th October, 2018. Subsequently, both advocates abandoned the direction to highlight the submissions and asked that any judge could write the judgment, which was accepted by this court considering that Otieno J, does not sit in Nairobi.
The parties herein have filed written submissions in the prosecution of that appeal. While preparing to write this judgment, I perused the original record of the Tribunal proceedings and also the record of appeal filed thereafter. Upon perusing the record before me ,I noted very serious anomalies which cannot allow me to write any judgment. The original handwritten judgment which is on record is not dated or signed, and does not have the names of the Tribunal panel that heard and determined the dispute. The typed judgment in the record of appeal is equally lacking in those material particulars.
I have also looked at the ruling by the Tribunal following an application for stay of execution, which apparently was delivered on 22nd June, 2005. Unlike the original and typed judgment which is the subject of this appeal, that ruling was signed by the Chairman, Deputy Chairman and three members of the Tribunal.
The Tribunal proceedings, I believe, are governed by the Civil Procedure Rules which provide under Order 21 thereof that, a judgment shall be dated and signed by a judge (in this case the Tribunal members) at the time of pronouncing it. That being the case, in the absence of any date, names and signatures, there is no judgment capable of standing the test of law. It is a nullity.
I have considered the options available in view of the circumstances that have come to light. The parties must go back to the Tribunal. The Tribunal shall exercise two options. The first is that, based on the evidence recorded, they can write a judgment and comply with the Civil Procedure Rules. The second is that, the parties can elect to have the dispute heard de novo. The file shall now be returned to the Tribunal for that purpose.
In the meantime, since there is no judgment on record capable of any execution, no execution can be carried out. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 27th day of June, 2019.
A. MBOGHOLI MSAGHA
JUDGE