[2020] KECA 947 (KLR)
The Court held that since one of the judges who heard the appeal (Githinji, JA) had retired before the judgments could be delivered, and the remaining two judges did not concur, the judgments could not be delivered. The absence of a concurring majority and the change in bench composition rendered the delivery of...
Source-derived case information.
- Citation
- [2020] KECA 947 (KLR)
- Parties
- Appellant: Peter Ndegwa Kiai T/A Pema Wines & Spirits; Respondent: The Attorney General; Respondent: The Cabinet Secretary for Internal Security and Co-ordination of National Government; Respondent: The Inspector General of Police
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 243 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Delivery of Judgment and Referral for Rehearing
- Outcome
- Appeal to be heard afresh by a new bench; matter referred to Registrar for re-listing.
- Judges
- GG Okwengu, A Mohammed
- Legal Topics
- Judgment Delivery, Bench Composition, Appeal Rehearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndegwa Kiai T/A Pema Wines & Spirits
Appellant
The Attorney General
Respondent
The Cabinet Secretary for Internal Security and Co-ordination of National Government
Respondent
The Inspector General of Police
Respondent
Procedural Posture
Civil Appeal / Ruling on Delivery of Judgment and Referral for Rehearing
Legal Issues
- 1 Whether the Court can deliver judgments when one of the judges has retired and the judgments are not concurring.
- 2 What is the proper procedure when parties fail to attend court for delivery of judgment and the bench composition changes.
Ratio Decidendi
The Court held that since one of the judges who heard the appeal (Githinji, JA) had retired before the judgments could be delivered, and the remaining two judges did not concur, the judgments could not be delivered. The absence of a concurring majority and the change in bench composition rendered the delivery of judgment procedurally impossible. Consequently, the appeal must be heard afresh by a new bench, excluding the two remaining judges. The matter is referred to the Registrar to fix a new hearing date on a priority basis.
Court Disposition
Appeal to be heard afresh by a new bench; matter referred to Registrar for re-listing.
Orders
- The appeal is referred to the Registrar of the Court of Appeal for a hearing date to be fixed on priority for the appeal to be heard afresh by another bench excluding Okwengu, JA and J. Mohammed, JA.
Full Case Text
Judgment text and source record
28 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: E. GITHINJI, H. OKWENGU & J. MOHAMMED, JJ.A)
CIVIL APPEAL NO. 243 OF 2017
BETWEEN
PETER NDEGWA KIAI
T/A PEMA WINES & SPIRITS...............................................................APPELLANT
AND
THE ATTORNEY GENERAL........................................................1STRESPONDENT
THE CABINET SECRETARY FOR INTERNAL SECURITY
ANDCO-ORDINATION OFNATIONAL GOVERNMENT.....2NDRESPONDENT
THE INSPECTOR GENERAL OF POLICE................................3RDRESPONDENT
(An appeal from the Judgment of the High Court of Kenya at Nairobi (J.M. Mativo, J), dated 6thJune, 2017
in
High Court Constitutional Petition No. 323 of 2015)
************************
RULING OF THE COURT
This appeal was heard by a Three-Judge bench that included Githinji, JA who has since retired from service. Although three judgments were prepared and duly signed by the respective judges, the judgments were not delivered while Githinji, JA was still in service. This is because the parties failed to attend Court fordelivery of judgment despite the matter being fixed on two occasions and the parties duly served with notices to attend court for delivery of judgment.
As the judgments of the two remaining judges are not concurring, the judgments cannot now be delivered. The appeal is therefore referred to the Registrar of the Court of Appeal for a hearing date to be fixed on priority for the appeal to be heard afresh by another bench excluding, Okwengu, JA and J. Mohammed, JA.
DATED and delivered at Nairobi this 24thday of January, 2020.
HANNAH OKWENGU
.....................................
JUDGE OF APPEAL
J. MOHAMMED
...................................
JUDGE OF APPEAL
I certify that this is atrue copy of the original
DEPUTY REGISTRAR