[1987] KEHC 90 (KLR)

[1987] KEHC 90 (KLR)

The court found that the trial judge's conduct in delivering judgment before the completion of the hearing, without hearing the defence or allowing for cross-examination and submissions, was a fundamental procedural irregularity. This denied both parties the right to a fair hearing as required by law. The judgment was therefore a nullity, as it did not resolve the issues submitted for determination on the basis of evidence and argument. The proper procedure under Order XVIII of the Civil Procedure Rules was not followed, and the judge should have adjourned the hearing if unable to proceed, rather than prematurely concluding the case. As a result, the judgment and orders of the High Court...

Citation
[1987] KEHC 90 (KLR)
Parties
Appellant: Owino; Respondent: Madowo
Court
High Court
Court Station
High Court at Kisumu
Jurisdiction
Kenya
Judgment Date
13 October 1987
Case Number
Civil Appeal 93 of 1986
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
Appeal allowed. Judgment and orders of the High Court set aside. Suit remitted for hearing de novo before a different judge.
Judges
EN Juma, FK Apaloo
Legal Topics
Defamation, Malicious Publication, Judicial Procedure Irregularity, Fair Comment, Privileged Occasion
Source Language
English
Civil Procedure Tort Law Defamation Malicious Publication Judicial Procedure Irregularity Fair Comment Privileged Occasion

Case Brief

Summary, issues, holding and outcome

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Parties

Owino

Appellant

Madowo

Respondent

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the trial judge erred by delivering judgment before the completion of the hearing and without hearing the defence.
  2. 2 Whether the words published by the defendant were defamatory of the plaintiff.
  3. 3 Whether the occasion of publication was privileged and whether the words constituted fair comment.

Ratio Decidendi

The court found that the trial judge's conduct in delivering judgment before the completion of the hearing, without hearing the defence or allowing for cross-examination and submissions, was a fundamental procedural irregularity. This denied both parties the right to a fair hearing as required by law. The judgment was therefore a nullity, as it did not resolve the issues submitted for determination on the basis of evidence and argument. The proper procedure under Order XVIII of the Civil Procedure Rules was not followed, and the judge should have adjourned the hearing if unable to proceed, rather than prematurely concluding the case. As a result, the judgment and orders of the High Court...

Court Disposition

Appeal allowed. Judgment and orders of the High Court set aside. Suit remitted for hearing de novo before a different judge.

Orders

  • The appeal is allowed.
  • The judgment and orders of the High Court are set aside.