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Court of AppealPartially AllowedCivil Appeal 342 of 2001

Kola Chacha v Kenya Commercial Bank & another [2006] KECA 172 (KLR)

Court of Appeal of Kenya
14 July 2006
1,625 words in judgment
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The bottom line

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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

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Executive summary

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The appellant bought land parcel BUKIRA/BWISABOKA/258 at an auction conducted by the second respondent on behalf of the first respondent bank, paying Ksh.27,000, but was later removed from the land as a trespasser because it was not the land sold. The High Court (Mbito, J) found the transaction void for lack of Land Control Board consent and entered judgment only for the refund of Ksh.27,000 plus costs and interest, dismissing the rest of the suit. The judgment, though written by the judge, was not dated and was read by the Deputy Registrar on 4th April 1996. On appeal, both counsel agreed the judgment was a nullity for breach of Order XX rule 3(2) of the Civil Procedure Rules, which requires a judgment to be dated and signed or countersigned in open court; they differed only on whether the matter should have come by appeal or review. The Court held that an undated judgment is a nullity, and that the proper course is to allow the appeal, declare the judgment a nullity and remit the suit for hearing afresh, rather than strike out the appeal, which would leave the null judgment standing and work injustice. It declined to decide whether the Deputy Registrar could lawfully have read the judgment. The appeal was allowed, the judgment declared a nullity, the suit remitted before another judge, and each party ordered to bear its own costs of the appeal and the superior court.

Questions the Court framed

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

  1. 1.Whether an undated judgment of the High Court, delivered by the Deputy Registrar, is a nullity under Order XX rule 3(2) of the Civil Procedure Rules
  2. 2.Whether such an appeal should be struck out as incompetent or allowed with the judgment declared a nullity
  3. 3.Whether the appellant should have sought review before the superior court instead of appealing

Key legal issues

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01

Effect of failure to date a judgment

Holding

An undated judgment is a nullity as it offends Order XX rule 3(2) of the Civil Procedure Rules

Reasoning

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.

p. 3
02

Whether an appeal against a null judgment is incompetent and should be struck out

Holding

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

Reasoning

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.

p. 3
03

Delivery of an undated judgment by the Deputy Registrar

Holding

Moot once the judgment is held a nullity; whoever read it read a nullity

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.Appeal allowed
  2. 2.The purported judgment of the superior court declared a nullity
  3. 3.The suit remitted to the superior court for hearing afresh before another judge of that court
  4. 4.Each party to bear its own costs of the appeal and of the superior court

The bench

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

majority
majority
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)

Relief refused

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Determination of the ground that the judgment was read by the Deputy Registrar rather than the judge

Having found the judgment a nullity for non-dating, it was unnecessary to decide who read it

p. 3

Costs

Each party shall bear its own costs of the appeal and of the superior court

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.

These provisions are clear that a judgment must be dated and it follows that a judgment which is not dated is a nullity.
p. 2Nullity of undated judgments
For the foregoing reasons, this appeal is allowed, the purported judgment declared a nullity, and the suit remitted to the superior court for hearing afresh before another judge of that court. Each party shall bear its own costs of the appeal and of the superior court.
p. 3Final orders and costs
In our view, the applicant had two options open to him. He could have proceeded by way of a review application before the superior court or he could lodge an appeal in this Court.
p. 3Choice of remedies against a null judgment

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, "Kola Chacha v Kenya Commercial Bank & another [2006] KECA 172 (KLR)", 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.