Kola Chacha v Kenya Commercial Bank & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that a judgment without a date is legally void, and ordered the 18-year-old land dispute to be heard afresh.
What this practically means
#Executive summary
#Key legal issues
#Effect of failure to date a judgment
An undated judgment is a nullity as it offends Order XX rule 3(2) of the Civil Procedure Rules
Order XX rule 3(1) and (2) of the Civil Procedure Rules requires that a judgment, whether pronounced by the judge who wrote it or by another judge, must be dated and signed or countersigned in open court at the time of pronouncement. The judgment appealed from was not dated by the judge who wrote it. The court held this non-compliance rendered the judgment a nullity.
Whether an appeal against a null judgment is incompetent and should be struck out
The appeal should be allowed and the null judgment set aside, not struck out; striking out would leave the null judgment standing and cause injustice
The appellant had two options: review before the superior court or appeal to the Court of Appeal, in either case seeking a declaration of nullity. Striking out the appeal would leave the null judgment in place as the basis for payment of Ksh.27,000, which would be unjust and unfair given that review would be too late. The court distinguished authorities where appeals were struck out for missing records, and followed cases where null judgments were set aside.
Delivery of an undated judgment by the Deputy Registrar
Moot once the judgment is held a nullity; whoever read it read a nullity
The court declined to decide whether the Deputy Registrar could lawfully read the judgment, holding that a null judgment does not become valid or invalid depending on who reads it, since the document itself is a nullity.
Legal principles established
#- A judgment must be dated and signed in open court; a judgment which is not dated is a nullity
- Where a superior court judgment is a nullity for non-compliance with Order XX rule 3(2), the remedy is to allow the appeal, declare the judgment a nullity and remit the suit for hearing afresh rather than strike out the appeal
Court orders
#- 1.Appeal allowed
- 2.The purported judgment of the superior court declared a nullity
- 3.The suit remitted to the superior court for hearing afresh before another judge of that court
- 4.Each party to bear its own costs of the appeal and of the superior court
- On appeal from
- High Court of Kenya at Kisii
- H.C.C.C No. 158 of 1988
- Jurisdiction invoked
- First appeal against judgment and decree of the High Court (not expressly stated; appeal as of right under the Constitution and Court of Appeal Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kola Chacha v Kenya Commercial Bank & 1 other", Case Analysis (2006). Civil Appeal 342 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/172/eng@2006-07-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.