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Court of AppealAllowedCivil Appeal No. 285 of 1997

Elizabeth Braganza v Tysons Habenga Limited [1998] KECA 145 (KLR)

Court of Appeal
20 March 1998
AKAkiwumiPhilip Kiptoo TunoiTunoiSHShah
370 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out a High Court judgment because the judge took nearly 15 months to deliver it, ruling such unexplained delay can amount to a miscarriage of justice.

What this practically means

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Executive summary

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The Court of Appeal at Nairobi (Akiwumi, Tunoi and Shah, JJ.A.) allowed the appellant Elizabeth Braganza's appeal against a judgment of the High Court at Nairobi (Lady Justice Owuor) delivered on 16 October 1997 in H.C.C.C. No. 105 of 1991. The copy provided reproduces only the short judgment of Tunoi, JA, who agreed with the leading judgment of Shah, JA and added observations on the conduct of the trial judge. Counsel for the appellant demonstrated that the learned judge took nearly 15 months to deliver judgment, during which the appellant's advocates made more than 30 vain attendances. Tunoi, JA held that while delay in delivering judgment is solely the responsibility of the judge who heard the case, and what constitutes delay depends on the circumstances of each case, the delay here was too inordinate and should not have occurred absent compelling reasons explained in the judgment. By the time the judgment was written the judge had lost the 'feel' of the case, and the length of time gave rise to suspicion that a miscarriage of justice had occurred through submissions being forgotten or lost. The court also noted the suggestion that the judgment was vindictive, prompted by counsel's incessant complaints over the delay. The court held that the judge's conduct in delaying judgment added great weight to the substance of the appeal and, together with counsel's forceful submissions, resulted in reversal of the High Court judgment. The appeal was allowed and the reliefs suggested by Shah, JA granted. The substantive reasoning of Shah, JA and the precise final orders and costs are not reproduced in the copy provided.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court judgment should be set aside, having regard to the inordinate delay of nearly 15 months in delivering the judgment and the material findings allegedly not justified by the evidence
  2. 2.Whether the delay in delivering judgment gave rise to a miscarriage of justice
  3. 3.Whether the judgment was vindictive, having regard to the appellant counsel's incessant complaints over the delay

Key legal issues

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01

Effect of inordinate delay in delivery of judgment on the validity of the judgment

Holding

The delay of nearly 15 months, accompanied by more than 30 vain attendances by the appellant's advocates, was too inordinate and should not have occurred absent compelling reasons explained in the judgment; it deprived the judge of the 'feel' of the case and gave rise to suspicion of a miscarriage of justice, warranting reversal.

Reasoning

The court accepted counsel's submission that the trial judge took nearly 15 months to deliver judgment after over 30 vain attendances. While delay is the sole responsibility of the hearing judge and its significance is case-specific, unexplained delay of this magnitude suggested submissions were forgotten or lost, undermining confidence in the findings and adding great weight to the substance of the appeal.

02

Whether the judgment was vindictive following complaints about the delay

Holding

The court noted the suggestion that the judgment was vindictive due to the appellant counsel's incessant complaints, and treated the judge's conduct in delaying judgment as adding great weight to the substance of the appeal and contributing to its reversal.

Reasoning

Tunoi, JA recorded that it had been suggested the judgment was vindictive because of counsel's complaints over the delay. He did not make a definitive finding of vindictiveness but held that the conduct in delaying judgment, combined with counsel's forceful submissions, resulted in reversal of the judgment below.

p. 1

Legal principles established

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  • Responsibility for delay in delivering judgment rests solely with the judge who heard the case, and what constitutes inordinate delay depends on the circumstances of each case.
  • An inordinate, unexplained delay in delivering judgment may justify reversal where it gives rise to suspicion of a miscarriage of justice through forgotten or lost submissions.

Court orders

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  1. 1.Appeal allowed
  2. 2.Reliefs suggested by Shah, JA granted (as stated in Tunoi, JA's judgment; the specific reliefs are contained in the judgment of Shah, JA, not reproduced in this copy)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philip Kiptoo Tunoi
majority

Wrote the judgment

Tunoi, JA wrote a short concurring judgment agreeing with Shah, JA, adding views only on the conduct of the trial judge, who took nearly 15 months to deliver judgment after more than 30 vain attendances by the appellant's advocates. He held the delay was inordinate and unexplained, deprived the judge of the 'feel' of the case, gave rise to suspicion of miscarriage of justice, and added weight to the substance of the appeal, resulting in its reversal. He would allow the appeal and grant the reliefs suggested by Shah, JA.

For these reasons and the reasons given in Shah, J.A.'sjudgment, I would allow this appeal and grant the reliefssuggested by Shah, J.A.p. 2
SH
majority
AK
majority
On appeal from
High Court at Nairobi
H.C.C.C. No. 105 of 1991
Jurisdiction invoked
First appeal to the Court of Appeal under the Constitution of Kenya and the Appellate Jurisdiction Act (not expressly stated in the excerpt)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Delay in delivering judgment may arise due to a varietyof reasons but is solely the responsibility of the judge whoheard the case. What constitutes delay, however, depends onthe particular circumstances of each case.
p. 1Responsibility for delay in delivering judgment
In this case the delay was too inordinate and should nothave occurred unless there were compelling reasons which thelearned Judge should have explained in the judgment.
p. 1Inordinate delay as ground for reversal
For these reasons and the reasons given in Shah, J.A.'sjudgment, I would allow this appeal and grant the reliefssuggested by Shah, J.A.
p. 2Disposition - appeal allowed

Issues in the judgment

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material

The copy provided contains only the judgment of Tunoi, JA, which expressly relies on the judgment of Shah, JA ('I have had the advantage of reading the judgment of Shah,J.A. with which I agree'). Shah, JA's judgment, which contains the substantive reasoning and the specific reliefs granted, is not reproduced, so the full reasoning and final orders cannot be verified.

material

The judgment of Akiwumi, JA is not reproduced in the copy provided, although he sits on the coram; the costs order and precise final orders are therefore not ascertainable from this excerpt.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Elizabeth Braganza v Tysons Habenga Limited [1998] KECA 145 (KLR)", Case Analysis (1998). Civil Appeal No. 285 of 1997. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/145/eng@1998-03-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.