Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited [2001] KECA 195 (KLR)
The bottom line
#The Court of Appeal threw out a judgment against a law firm because the High Court skipped required steps — and refused a fresh trial.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a judgment written and signed by a judge but pronounced by a Principal Deputy Registrar is a nullity under Order XX rule 2 (2) of the Civil Procedure Rules
- 2.Whether the trial court's failure to record special reasons before making a final enforcement order, as required by Order LII rule 7 (2) of the Civil Procedure Rules, rendered the judgment a nullity
- 3.Whether the Court of Appeal has jurisdiction to order a retrial where the judgment below is a nullity
- 4.Whether the appellant had an automatic right of appeal against orders made under Order LII Rule 7 following the 1996 re-numbering of the rules
Key legal issues
#Validity of a judgment pronounced by a Deputy Registrar
The judgment was a nullity because it was pronounced, dated and countersigned by a Principal Deputy Registrar rather than a judge, contrary to Order XX rule 2 (2) of the CPR.
Order XX rule 2 (2) permits only a judge of the High Court to pronounce a judgment written and signed by another judge. Order XX rule 3 (2) contemplates that where the writing judge cannot pronounce the judgment, another judge dates and countersigns it. Pronouncing judgment is not a ministerial act a Deputy Registrar may perform under Order XLVIII. The trial judge handed his written opinion to a person without jurisdiction, rendering the judgment a nullity.
Non-compliance with Order LII rule 7 (2) procedure for enforcing an advocate's undertaking
The trial judge's failure to record special reasons before making a final enforcement order rendered the judgment a nullity.
Order LII rule 7 (2) requires that, save for special reasons recorded by the judge, the first order on an application to enforce an advocate's undertaking must be that the advocate honour the undertaking within a fixed time, with enforcement orders to follow only thereafter. The procedure is mandatory. The trial judge entered final judgment as prayed without recording any reasons for departing from the procedure, an omission which went to the root of the judgment.
Whether a retrial should be ordered where the judgment is a nullity
No retrial was ordered; the errors were the court's own errors of law within a regularly conducted suit, and the power to order a retrial must be exercised sparingly.
Rule 31 of the Court of Appeal Rules confers wide discretion to order a new trial, but the circumstances are not spelled out and depend on the facts of each case. Here the hearing proceeded regularly and the suit was competent; the defects arose in the judgment itself. The adversarial system cautions against steps that might appear to assist one party. The respondent, represented when the null judgment was read, raised no objection. Further, the respondent's chances of success on the merits were not credible, so a retrial would only overburden the parties in costs.
Automatic right of appeal under Order 42 Rule 1 (dd)
The appellant had an automatic right of appeal because the 1996 substitution of Rule 6A with Rule 7 did not intend to remove the right of appeal.
Prior to 1996, enforcement applications were brought under Order LII Rule 6A, against which Order 42 Rule 1 (dd) conferred an automatic right of appeal. Legal Notice No. 5 of 1996 deleted Rule 6A and substituted Rule 7, but Order 42 Rule 1 (dd) still refers to Rule 6A. Applying Section 23 (2) of the Interpretation and General Provisions Act, references to the repealed provision are construed as references to the re-enacted provision; the law maker did not intend to remove the right by mere re-numbering.
Legal principles established
#- A judgment written and signed by one judge of the High Court may only be pronounced, dated and countersigned by another judge of the High Court, not by a Deputy Registrar; pronouncement by a Deputy Registrar renders the judgment a nullity.
- Where rules of court prescribe a mandatory procedure, departure from it renders the resulting act a nullity.
- Enforcement of an advocate's undertaking must, save for special reasons recorded by the judge, begin with an order that the advocate honour the undertaking within a fixed time; a final enforcement order made without recorded special reasons is a nullity.
- A court's misapprehension of the law within its jurisdiction is not, per se, a sufficient reason to order a retrial; the power to order a retrial must be exercised sparingly.
- Where a written law repeals and re-enacts a provision, references in another law to the repealed provision are construed as references to the re-enacted provision; hence the automatic right of appeal attaching to orders under former Order LII Rule 6A attaches to the re-numbered Rule 7.
Court orders
#- 1.The judgment and orders of the High Court (Mbito J) dated 23rd November 1999 set aside as a nullity
- 2.Refusal of an order for retrial
- 3.The appellants awarded the costs of the appeal and of the proceedings in the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 755 of 1996 [O.S.]
- Jurisdiction invoked
- Automatic right of appeal under Order 42 Rule 1 (dd) of the Civil Procedure Rules, read with Section 23 (2) of the Interpretation and General Provisions Act (Cap 2)
Relief refused
#Order for retrial sought by the respondent's counsel (Mr Gatonye)
The hearing before the trial court was regular; the errors were errors of law by the court itself, not irregularities attributable to the parties; the respondent failed to object when the null judgment was pronounced; and the respondent's prospects on the merits were not credible
Costs
The appellants shall have the costs of the appeal and of the proceedings in the superior court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Pronouncing a judgment is not one of the recognized ministerial acts which a Deputy Registrar may perform pursuant to the provisions of Order XLVIII of the CPR .
It is trite law that where rules of court prescribe a procedure for the doing of any act, a departure from or a variation thereof may render the act done a nullity.
This is a case of a court misapprehending the law, and that per se is not a sufficient reason for ordering a retrial.
In the result, we hold that this is not a proper case for a retrial. As regards costs, the general rule is that costs follow the event.
The appellants shall have the costs of the appeal and of the proceedings in the superior court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited [2001] KECA 195 (KLR)", Case Analysis (2001). Civil Appeal No. 154 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/195/eng@2001-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.