Herbert Asava & 10 others v Timothy Bilindi & 3 others [2001] KECA 153 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a judgment delivered by a magistrate without proper authority under the Civil Procedure Rules is a nullity and must be set aside.
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 judgment appealed against was a nullity for having been delivered by a Senior Resident Magistrate in breach of Order XX rule 2(2) of the Civil Procedure Rules and not authorised by the provisions of Order 48 of the Civil Procedure Rules.
Key legal issues
#Whether the judgment appealed against was a nullity for having been delivered by a Senior Resident Magistrate in breach of Order XX rule 2(2) of the Civil Procedure Rules and not authorised by Order 48 of those Rules.
Yes. The Court accepted the contention, which counsel for the respondents conceded, that the judgment was a nullity, and on that basis allowed the appeal and set the judgment aside.
The Court delivered a brief judgment without extended analysis. It recorded Mr. Wanga's submission that the judgment was a nullity because it was delivered by a Senior Resident Magistrate in breach of Order XX rule 2(2) of the Civil Procedure Rules and was not authorised by the provisions of Order 48 of those Rules. Mr. Anzia for the respondents agreed. On that common ground the Court allowed the appeal with costs, set aside the judgment appealed from and dismissed the application in the superior court dated 19th March 1999 with costs.
What orders follow where the judgment appealed against is held to be a nullity.
The appeal is allowed with costs, the null judgment is set aside, and the application in the superior court dated 19th March, 1999 is dismissed with costs; the matter was not remitted.
The Court gave no reasons beyond accepting the common position of counsel, but its orders show the consequences it attached to a nullity. The judgment appealed from was set aside outright rather than remitted for any further hearing, and the application that had been pending before Mbito J was dismissed with costs. The judgment does not disclose what relief that application sought or why dismissal, rather than any other order, was the appropriate consequence of the nullity.
Legal principles established
#- A judgment delivered by a Senior Resident Magistrate in breach of Order XX rule 2(2) of the Civil Procedure Rules and not authorised by the provisions of Order 48 of those Rules is a nullity and falls to be set aside on appeal.
Court orders
#- 1.The appeal is allowed with costs.
- 2.The judgment appealed from (the ruling and order of the High Court at Busia dated 29th March, 2000 and delivered on 3rd May, 2000 in H.C. Misc. Appl. No. 17 of 1998) is set aside.
- 3.The application in the superior court dated 19th March, 1999 is dismissed with costs.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Busia
- H.C. Misc. Appl. No. 17 of 1998
- Jurisdiction invoked
- Not stated in the judgment; no constitutional or statutory provision conferring appellate jurisdiction is cited. The appeal lay from the High Court at Busia to the Court of Appeal.
Relief refused
#The application in the superior court dated 19th March, 1999 (the relief it sought is not disclosed in the judgment)
Dismissed with costs, the Court having accepted that the judgment it concerned was a nullity
Costs
The appeal was allowed with costs, and the application in the superior court dated 19th March, 1999 was dismissed with 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.
the judgment appealed against is a nullity having been delivered by a Senior Resident Magistrate in breach of Order xx r.2(2)
the appeal is allowed with costs, the judgment appealed from is set aside and the application in the superior court dated 19th March, 1999 is disimissed with costs
Issues in the judgment
#The text of the judgment is corrupted in places (apparent typographical or scanning errors), including in the citation of the governing rule and in the word 'dismissed' in the final orders, which appears as 'disimissed'.
The third respondent is named 'JESTIMORE WEBI' in the caption, but the same line carries the parenthetical '(JEREMISA H LUSWETI)', leaving the correct name of the third respondent ambiguous.
The judgment does not disclose what relief the application in the superior court dated 19th March, 1999 sought, nor how the Senior Resident Magistrate's judgment impugned as a nullity related to the High Court ruling appealed from.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kola Chacha v Kenya Commercial Bank & another [2006] KECA 172 (KLR)[2006] KECA 172 (KLR)14 Jul 2006applied
Cite this brief
#Cite this brief
Caselaw, "Herbert Asava & 10 others v Timothy Bilindi & 3 others [2001] KECA 153 (KLR)", Case Analysis (2001). Civil Appeal No. 196 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/153/eng@2001-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.