Court ruling on 'judgment' divides lawyers

When should a judgment be regarded as having been delivered, where a judge reads a decision and reserves the reasoning to be read at a later date?

That question, arising from ruling delivered by the Supreme Court last week, is what is disturbing legal minds.

Writing and delivery of judgments is regulated by the law for all judges and magistrates. A date when a judgment is read, is always vital in determining legal timelines for subsequent appeals by litigants.

The debate was sparked by a ruling by two Supreme Court judges Mohamed Ibrahim and JB Ojwang on May 27 in a petition challenging the election of Lamu Governor Issa Timamy.

The petition filed by his opponents Swaleh Salim and Fahim Yasin Twaha was allowed by the High Court in September 2013, leading to nullification of the election.

Timamy appealed to the Court of Appeal in Malindi. Three judges Hannah Okwengu, Newton Makhandia and Fatuma Sichale heard the appeal.

On November 21, 2013, they delivered a three-page determination-"our decision"- which reinstated the governor.

On January 13, 2014, they delivered a detailed determination, giving extensive reasons for their November decision. They titled that decision, "Judgment of the Court".

An issue arose when the matter went to Supreme Court. The petitioner's lawyer Kibe Mungai argued that what the judges read on November 21, 2013 was only an "order" and the "judgement" was the one read on January 13, 2014.

Mungai asked the court to allow his client to file an appeal late, claiming the Court of Appeal had delayed in delivering the judgment.

He said under the Supreme Court rules, he could not file an appeal without the judgment of the Court of Appeal.

However, the governor through lawyer Feroze Nowrojee maintained that the judgment was delivered in November 2013 and the court only read its reasoning in January 2014.

Nowrojee said judgment means the decision of the court. It didn't matter whether the edict given in November 2013 was an "order" or a "judgment"; for all parties knew of the said decision in 2013.

The two Supreme Court judges held that the judgment was delivered on November 21, 2013.

"It is clear to us that the Judgment of the Court of Appeal was delivered on November 21, 2013, and what was issued on January 13, 2014 were the reasons running through that judgment as these had been reserved," the judges held.

However, its only the decision delivered on January 13, which is found in the Kenya Law Reports, which is the official website for court decisions.

Mungai says he intends to take the matter before a bench of five Supreme Court judges.

"We want to know if all the judges concur with this and to decide with finality, what was and what was not a judgment in this matter," says Mungai.

In 2013, the Supreme Court delivered a one-page decision on the Presidential Election petition, calling it an order of the court. This prompted criticism from a section of lawyers and the public. The judges then delivered their detailed judgement on April 16 the same year.