Saulo Kandie v James Kwambai Cheruiyot [2019] KECA 257 (KLR)

The Court examined the record of 11th May 2001 and found no record of the morning session, no record that the matter was called out at 12.30 pm, and no record that the magistrate advised the appellant to return with his advocate at 2.00 pm. Since the official record is the court file rather than counsel's affidavits, the magistrate's statement that she had perused a record was erroneous. The absence of a record provided a concrete factual basis for the contention that the appellant was denied an opportunity to be heard.

The Court held that the sanctity of the official court record is paramount. The High Court itself found there was no coram or record for the morning session of 11th May 2001. That finding alone should have led the Judge to set aside the ex parte judgment. Instead the Judge placed decisive weight on the appellant's failure to annex the day's cause list, which the Court found unjustified in the circumstances.

Relying on Tana & Athi Rivers Development Authority and Patriotic Guards Ltd v Sambu, the Court weighed the prejudice to each party. The respondent stood to suffer no prejudice if the suit proceeded inter partes on merit, whereas the appellant was locked out of the seat of justice through the ex parte hearing. In the absence of a record for the morning session, there was no grave reason to deny the appellant a full hearing, so the interest of justice warranted intervention.

The dispute over whether the magistrate announced she would not sit in the afternoon, and whether she advised the appellant in person, transmuted the question of fair hearing into contested fact-finding. The Court advised judicial officers that all proceedings must be recorded in the court file and that a judicial officer should not delve into contestations of disputed facts and then determine the matter in dispute, as the magistrate did here.