Charles Gichina Mwangi v Henry Mukora Mwangi

The court treated the consent order of 15 July 1996 directing that the appeal be argued by written submissions as a serious breach of the rules of procedure. Order XLI rule 13 prescribes a sequential oral hearing; the rule is simple and clear and admits no exception. Consent between the parties cannot amend the Civil Procedure Rules or confer a mode of hearing the rules do not allow. Because the learned Judge never heard the appeal, she had no basis on which to write a judgment at all.

The court reasoned that the power to write a judgment is conditioned on the prior hearing of the appeal. Since the hearing mandated by Order XLI rule 13 never took place, the decision dated 25 June 1998 lacked judicial character and could not stand. The consequence was not completion or curing of the process but outright setting aside, with the first appeal starting afresh before any Judge of the High Court, because a party is entitled to a full hearing of his appeal.

The plea of res judicata, raised in the subordinate court and rejected by both the Magistrate and the Judge, was the apparent substance of the appeal. The court deliberately declined to resolve it: the point on which the appeal was ultimately decided had been abandoned by counsel for the appellant, and the court's orders send the first appeal back for a fresh hearing before any Judge, where the res judicata question will fall to be determined on the merits.