Reconciling the De-novo Principle and timely justice following the transfer of judicial officials

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By Patricia Buyeshe Angaya*

"No rule of natural justice, no rule of statutory protection, no rule of evidence, and no rule of common sense is to be sacrificed, violated, or abandoned when it comes to protecting the liberty of the subject. He is the most sacrosanct individual in the system of our legal administration."- Madan, Kneller and Nyarangi J.J.A in Ndegwa v Republic, Criminal Appeal No. 125 of 1984, Judgement of the Court of Appeal at Nakuru (1985) eKLR

Not too long ago, the Chief Justice, Martha Koome, made significant changes in the judiciary by transferring 13 judges of the High Court from their court stations to different locations and court divisions respectively. Some of the judges included Mugure Thande and Hedwig Ong'undi who have rendered timely judgements regarding matters of national importance.[i] Justice Hedwig Ong'undi, in her dissenting opinion, declared the positions of an additional 27 Chief Administrative Secretaries (CASs) unconstitutional because public participation had not been conducted on the same[ii] while Justice Mugure Thande issued conservatory orders preventing the implementation of the Finance Act 2023 before the Petitioner's case was heard.

Transfers within the judiciary are normal, however, the timing can be absolutely wrong in some cases. For instance, a transfer where a judge has heard a case to the point of rendering judgment, but is transferred before writing one, may result in delayed justice since parties will have to wait for another judge to familiarise themselves with the facts of the case so as to deliver judgment. This is consequential especially where a matter involves a breach of fundamental rights and freedoms since delayed justice results in further breach.[iii] In determining a dispute, the courts are obligated to ensure the right to a person's fair trial is upheld through a public hearing before a court or an impartial tribunal.[iv] Additionally, it is every person's right to have a trial begin and end without unreasonable delay.[v]

The legal system of any country has a great influence on the delivery of justice. Ensuring that criminal justice systems are humane and fair is essential for maintaining the rule of law and providing an environment for sustainable development. Further, institutions established in such a system play a key role in determining the efficacy of the enjoyment of human rights, timely delivery of justice, and access to justice. [vi] In Kenya, mechanisms are provided for a party which deems that a fair trial will not be attained by dint of a new judge taking up the case mid-trial. This is by virtue of the de-novo principle which means to try a case anew as if it had not been heard before and no decision had been previously rendered.[vii]

This principle is domiciled in the Civil Procedure Act (CPA) and Rules, Criminal Procedure Code, and legal precedents. Section 1 of the CPA, the basis of the 'Oxygen Principles in civil law, guides courts in resolving disputes including facilitating just, expeditious, and affordable resolution of civil disputes.[viii] The Civil Procedure Rules outline situations where a new judge may deal with evidence heard before another judge.[ix] These situations include death, transfer, or any other reason that prevents the judge from concluding the trial.[x] Under the Criminal Procedure Code, a judge may take up a case from his predecessor if a judgment has been written and signed by his predecessor but not delivered.[xi] If no judgment has been delivered, the new judge has to act upon the evidence recorded by his predecessor or resummon the witness and restart the trial.[xii] In the event a trial magistrate ceases to have jurisdiction in a matter before passing a sentence, the succeeding magistrate will make an order as if he passed a judgment.[xiii]

Guaranteeism, a traditional school of thought, whose proponents were Giuseppe Chiovendra, Francesco Carnelutti, and Piero Calamander, holds that a lawsuit is a legal relationship between the authorities and the judicial authority that only acts as an impartial party.[xiv] A judge as a third party presides over the procedures to guarantee the rights of the parties and he must seek equality between the parties who are, in most cases, economically and socially unequal.[xv] The courts in Kenya have rendered decisions on the role of a judge. In Abdi Adam Mohamed v. Republic, the court held, "It is highly desirable that a trial judge hears a case to conclusion and ultimately render judgment as it is important for a final arbiter to be in a position to weigh evidence taken together with his observation of the witness's demeanor."[xvi]

The case of Mandavia v. Rattan Singh laid down considerations the court should note before making a de-novo order to include,[xvii]

i.Whether the successor judge is in a good position to evaluate evidence and submissions as like his predecessor.

ii.Availability of witnesses already testified.

iii.Prejudice that parties will suffer.

iv.Balance between the overriding objective and justice under Article 159 (2) vis-à-vis the cost effect of the order.

The disadvantages accompanied by the order include, the continued breach of fundamental human rights especially where no injunction order had been sought, the aggrieved party is likely to suffer irreparable loss and no order given will indemnify him and, more costs will be incurred since litigating a case is quite expensive. Where a litigant is not able to maintain the services of an advocate after the order, he will be prejudiced hence delaying the justice process by not following court procedures as required, example through filing the necessary documents or procuring witnesses to testify again. To ensure they deliver justice on time, courts are called upon to avoid any hindrances that may lead to delay. A judge should be transferred after giving a judgement on a case or allowed be allowed to write it and give it to the new judge. Before a case is filed in court, judges must be well versed with aspects of the case so that their jurisdiction is maintained all through. Judges should be encouraged to keep good records of court proceedings, both written and video graphed, such that in unforeseeable circumstances such as the death of a judge, the succeeding judge will find a good foundation to continue the case.

* The author is a student at the Kenya School of Law under the Advocates Training Programme. She is currently in pupillage at the firm of Njeri Kariuki Advocate. She is an alumnus of Kabarak University Law School Class of 2021. She prides herself as a legal writer and researcher with keen interest in Constitutional law and Human Rights law. Email address: This email address is being protected from spambots. You need JavaScript enabled to view it., LinkedIn/ Twitter: Patricia B. Angaya

[i] Kamau Muthoni, 'Mugure Thande among judges transferred in latest judiciary reshuffle.' The Saturday Standard, 9 August 2023-< https://www.standardmedia.co.ke >- 21 August 2023.

[ii] Matindi & 3 others v President of the Republic of Kenya & 4 others; Controller of Budget & 50 others (Interested Parties) (Petition E080, E084 & E150 of 2023 (Consolidated), Ruling of the High Court, 3 July 2023, [eKLR].

[iii] Angelo Dube, Assessment study on delayed justice, 17 July 2010, 6.

[iv] Constitution of Kenya (2010), Article 50(1).

[v]Constitution of Kenya (2010), Article 50(2)(e).

[vi] Dube, Assessment study on delayed justice ,7.

[vii] Black's Law Dictionary, 8 Edition.

[viii] Civil Procedure Act (No.21 of 2010), Section 1B.

[ix] Civil Procedure Act (No.21 of 2010), Section 1B.

[x] Civil Procedure Rules (Order 18 of 2020), Rule 8(1).

[xi] Criminal Procedure Code 1975, Section 200 (1) (a).

[xii] Criminal Procedure Code 1975, Section 200 (1) (b).

[xiii] Criminal Procedure Code 1975, Section 200 (2).

[xiv] Carlos Petit, 'Due process and civil procedure or how to do codes with theories' 66 American Journal of Comparative Law' (2018) 182.

[xv] Petit, 'Due process and civil procedure or how to do codes with theories', 66.

[xvi] Abdi Adan Mohamed v Republic, Criminal Appeal no. 1 of 2017, Judgement of the Court of Appeal at Mombasa, 11 May 2017 [eKLR].

[xvii] Mandavia v Rattan Singh (1965) E.A, para 26.

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