JOHN BARNABA MACHERA VS. NORTH MARA GOLD MINE LIMITED. CIVIL APPEAL NO. 204 OF 2019

Abstract

HELD i) it is on record that two points of preliminary objection over time limitation were raised in alternative before the predecessor Judge and the decision thereof was delivered. The first preliminary objection was dismissed as the court ruled out that the suit was not time barred; and the second one was overruled on ground that, it was a factual matter which required to be ascertained by evidence. ii) the predecessor Judge ordered the matter to proceed to the next stage where the First Pre-Trial Conference was conducted and the Mediation process took place unsuccessfully, this was a misdirection of the successor Judge who sat as an appellate Court over the decision of his fellow Judge of the same court which was, with respect, irregular. In a nutshell, the successor Judge was functus officio in determining what had been already decided by the predecessor judge. iii) we are of the considered view that, reframing an issue which had already been determined by the predecessor Judge was an unnecessary and unprocedural move which we are unable to condone. We therefore, find that it was not proper for the successor Judge 21 to invoke Order XIV Rule 2 of the CPC to take over the matter from where the predecessor Judge ended by reframing and determining a single issue. Suffices to state that, holistic approach of dealing with disputes between the parties to a suit serves time and it ensures certainty of decisions on what is in controversy between the parties, hence timely justice. iv) The parties should be availed opportunity to participate in the process of framing issues pertaining to their dispute. To be precises, both legal and factual issues. Thereafter, let the court decide them in accordance with the priority provided by the law, that, legal issues have to be determined first. v)we allow the appeal, nullify the proceedings from where the successor Judge took over the conduct of the case, that is, on 23rd November, 2018 and quash the judgment and orders thereof subject of the current appeal.