Likhanga Shikami & another v Llliana Ingasiali Regina & another [2015] KECA 128 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that an unsigned, undated High Court judgment is legally worthless, and ordered the 1991 land dispute to be retried from scratch.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court judgment was a nullity for failure to comply with Order XX of the (repealed) Civil Procedure Rules requiring a judgment to be dated and signed by the judge who wrote it and dated and countersigned by the judge who pronounced it
- 2.Whether the failure to sign and date the judgment was a mere procedural technicality curable under Article 159 of the Constitution
- 3.What orders should be made to determine the appeal, including whether a retrial should be ordered
Key legal issues
#Effect of non-compliance with Order XX requirements for signing and dating judgments
The judgment was neither dated nor signed by Nambuye J who wrote it, nor dated and countersigned by Gacheche J who pronounced it; it is therefore a nullity. Article 159 does not cure this defect.
Order XX rules 2(2), 3(1) and 3(2) of the repealed Civil Procedure Rules mandated that a judgment be dated and signed by the judge who wrote it, and dated and countersigned by any other judge pronouncing it. Citing Oraro & Rachier, the Court held that a departure from prescribed procedure may render the act a nullity. The respondents' Article 159 submission was rejected because a judgment not signed by its author is no judgment at all.
Appropriate remedy where the judgment below is a nullity in an old dispute
A retrial before the High Court, on a priority basis, is the prudent remedy, applying Rule 31 of the Court of Appeal Rules which permits remittal with directions.
Rule 31 of the Court of Appeal Rules empowers the Court to confirm, reverse or vary the decision below or remit the proceedings with appropriate directions. Given the dispute dated back to 1991 and the parties awaited determination, and since no judgment exists in law, the High Court must discharge its obligation and render judgment. The Court drew on David Kinyua Maingi for the principle that a trial process must end in a judgment.
Legal principles established
#- A judgment of the High Court that is not signed and dated by the judge who wrote it, and not dated and countersigned by the judge who pronounced it, is a nullity and not curable as a procedural technicality under Article 159
- Where a judgment is a nullity, the High Court must proceed to render judgment, and a retrial is the appropriate remedy so that the suit may be determined
Court orders
#- 1.The judgment of Nambuye, J is a nullity as it was neither signed nor dated
- 2.The matter is remitted to the High Court for retrial
- 3.The retrial to be heard on a priority basis
- 4.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Eldoret
- Eldoret H.C.C.C. No. 123 of 1991
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal Rules (Rule 31 general powers on appeal)
Relief refused
#Appellants' prayer that the respondents' suit in the High Court be dismissed with costs
Instead of dismissal, the Court ordered a retrial so the parties could obtain a final determination
Costs
Each party bears its own costs
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.
A judgment which is not signed by the judge who wrote it is no judgment. It is a nullity.
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.
The trial process in civil or criminal case must ipso jure end in a judgment.
we order that the matter re remitted to the High Court for retrial, and we direct that it be heard on a priority basis. We order that each party bears its own costs.
Issues in the judgment
#Typographical error in the final orders: 'the matter re remitted' appears instead of 'the matter be remitted'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Likhanga Shikami & another v Llliana Ingasiali Regina & another [2015] KECA 128 (KLR)", Case Analysis (2015). Civil Appeal No. 28 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/128/eng@2015-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.