Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealOtherCivil Appeal 243 of 2017· [2020] KECA 947 (KLR)

Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others

Court of Appeal
24 January 2020
HOHannah OkwenguJMJ. Mohammed
309 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~1 min to read original · ~4 min brief

The bottom line

#

When a Court of Appeal judge retires before delivering a judgment that doesn't agree with colleagues, the whole appeal must be heard again by a new bench.

What this practically means

#

Executive summary

#
This is a procedural ruling of the Court of Appeal at Nairobi dated 24 January 2020, made by Okwengu and J. Mohammed, JJA, in Civil Appeal 243 of 2017, an appeal by Peter Ndegwa Kiai trading as Pema Wines & Spirits against the Attorney General, the Cabinet Secretary for Internal Security and the Inspector General of Police, from a High Court constitutional petition decided by Mativo, J on 6 June 2017. The appeal had been heard by a three-judge bench that included Githinji, JA, who has since retired. Three judgments were prepared and signed by the respective judges, but judgment was never delivered while Githinji, JA was still in service because the parties, though served with notices, failed to attend court on two occasions fixed for delivery. Because the judgments of the two remaining judges are not concurring, the court held they cannot now be delivered. The court therefore directed that the appeal be referred to the Registrar of the Court of Appeal for a hearing date to be fixed on priority, for the appeal to be heard afresh by another bench excluding Okwengu, JA and J. Mohammed, JA. No costs order was made and the decision below was not disturbed. The ruling establishes that where a bench member retires before delivery of non-concurring judgments, the appeal must be heard de novo by a differently constituted bench.

Key legal issues

#
01

Effect of a judge's retirement before delivery of non-concurring judgments

Holding

The undelivered judgments cannot be delivered; the appeal must start afresh before a new bench

Reasoning

The appeal was heard by a three-judge bench including Githinji, JA who retired before judgment was delivered. Three judgments were prepared and signed but not delivered because the parties failed to attend on two occasions despite service of notices. Since the two remaining judgments are not concurring, they cannot be delivered, necessitating a fresh hearing before a new bench excluding the two judges.

Legal principles established

#
  • Where a three-judge bench's judgments are not concurring and one judge retires before delivery, the appeal must be heard afresh by a differently constituted bench excluding the remaining judges

Court orders

#
  1. 1.The appeal referred to the Registrar of the Court of Appeal for a hearing date to be fixed on priority
  2. 2.The appeal to be heard afresh by another bench excluding Okwengu, JA and J. Mohammed, JA
On appeal from
High Court of Kenya at Nairobi
Constitutional Petition No. 323 of 2015
Jurisdiction invoked
Inherent appellate jurisdiction of the Court of Appeal (not expressly stated in the ruling)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Peter Ndegwa Kiai t/a Pema Wines & Spirits v Attorney General & 2 others", Case Analysis (2020). Civil Appeal 243 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/947/eng@2020-01-24

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