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Court of AppealPartially AllowedCivil Appeal No. 154 of 2000· [2001] KECA 195 (KLR)

Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited

Court of Appeal of Kenya
13 July 2001
ROR. S. C. OmoloSBS. E. O. BosireEOE. Owuor
2,432 words in judgment
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The bottom line

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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

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Executive summary

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The appellants, a firm of advocates, appealed against a judgment of the High Court (Mbito J) which enforced a professional undertaking said to have been given by them to the Co-operative Bank of Kenya. The Court of Appeal identified two fatal defects in the judgment below. First, although the judgment was written and signed by the trial judge, it was pronounced, dated and countersigned by a Principal Deputy Registrar; under Order XX rule 2 (2) of the Civil Procedure Rules only a judge of the High Court may pronounce a judgment written by another judge, and pronouncing judgment is not a ministerial act a Deputy Registrar may perform under Order XLVIII. Second, the suit was brought by originating summons under Order LII rule 7, which requires that, save for special reasons recorded by the judge, the first order must be that the advocate honour the undertaking within a fixed time; the trial judge entered final judgment without recording any such reasons. Both defects rendered the judgment a nullity, a position properly conceded by counsel for the respondent bank. The contested question was the appropriate order. Counsel for the respondent sought a retrial, but the court declined: the hearing below had been regular, the errors were the trial court's own misapprehension of the law within a competent suit, the respondent had failed to object when the null judgment was pronounced, and the respondent's prospects on the merits were not credible. The court also held, on an issue it raised suo motu, that the appellant enjoyed an automatic right of appeal, since the 1996 re-numbering of Order LII Rule 6A as Rule 7 did not remove the appeal right preserved by Order 42 Rule 1 (dd), applying Section 23 (2) of the Interpretation and General Provisions Act. The appeal was allowed, the judgment set aside, no retrial ordered, and the appellants awarded costs of the appeal and of the proceedings below.

Key legal issues

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01

Validity of a judgment pronounced by a Deputy Registrar

Holding

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.

Reasoning

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.

p. 2
02

Non-compliance with Order LII rule 7 (2) procedure for enforcing an advocate's undertaking

Holding

The trial judge's failure to record special reasons before making a final enforcement order rendered the judgment a nullity.

Reasoning

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.

p. 2
03

Whether a retrial should be ordered where the judgment is a nullity

Holding

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.

Reasoning

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.

p. 3
04

Automatic right of appeal under Order 42 Rule 1 (dd)

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The judgment and orders of the High Court (Mbito J) dated 23rd November 1999 set aside as a nullity
  2. 2.Refusal of an order for retrial
  3. 3.The appellants awarded the costs of the appeal and of the proceedings in the superior court
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)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Oraro & Rachier Advocates v Co-operative Bank of Kenya Limited", 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.