After hearing is completed, the court will pronounce judgment. Rules 1 to 5 of Order 21 deal with judgment and Rules 6 to 19 deal with Decrees.
WHAT IS A JUDGMENT?
A Judgment is a statement given by a Judge on the grounds of a decree or Order. It is a final decision of the Court to the parties and the World at large by formal pronouncement or delivery in open court.
Once evidence has been taken and submissions have been made the court should pronounce judgment. Judgment must pronounce reason for every issue – ratio decidendi.
Order 21 Rule 4 to 5 set out essential elements of a judgment:
1. A Judgment must contain a concise statement of the facts of the case;
2. Contain points for determination;
3. The decisions on each of those points;
4. Reasons for each of those decisions.
The Judgments must also show that the Judge applied their mind intelligently. An important element under Rule 1 is that the court shall give judgment in open court after the hearing or at a future date.
Order 21 requires that judgment be pronounced in open court either at once or within 60 days from the conclusion of the trial at which failure to do which reasons therefore must be forwarded to the Chief Justice and a date immediately fixed. Due of the judgement notice shall be given to the parties or their advocates.
Judgment must be dated and signed normally and it will be read and signed by the person who wrote it. Order 21 Rule 2 empowers a judge to pronounce a judgment which has been written, signed but not pronounced by predecessor. It should be dated and signed by him in open court at the time of pronouncing it. Where the judgment is read by a different judge who did not write the judgement the one who wrote should countersign.
When writing a judgment, it is important that
1. One ensures there are no irregularities;
2. Judgement should not be vague and certain points should not be left to inference.
3. It must be made of points raised in the pleadings in the cause of trial;
4. It must record all points raised by all parties.
The statement of facts recorded in the judgment will be the conclusive facts of the case.
All judicial pronouncements must be judicial in nature, sober, moderate and language must be used in a restrained and dignified manner.
Once a judgement has been read, the court becomes functus officio.
Under provisions of Section 39 the court may add for purposes of correcting clerical or arithmetical errors. An error on the face.
A Decree is a technical translation of the judgment capable of execution. In the lower courts, a decree is drawn by the Deputy Registrar. In the High Court the parties themselves draw up the decree and take it back to court to be sealed.
Rule 7 Order 21 -The decree should be in agreement with the judgment. The decree should contain the number of the suit, the names and descriptions of the parties, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
The decree shall also state by whom or out of what property or in what proportion the costs incurred in the suit are to be paid.
The court may direct that the costs payable to one party by the other shall be set-off against any sum which is admitted or found to be due from the former to the latter.
A decree shall bear the date of the day on which the judgment was delivered.
Rule 8 (2)– any party to a suit in the High Court may prepare a decree and give it to other party for approval, if they don’t ask the court to accept the draft and if the court approves they sign and seal and it becomes the official decree. If the parties disagree as to the format, the party can make the decision on how it is to be settled and the decree is signed and sealed and remains part of the courts records.
Under rule 8(5) the procedure for preparation of decrees either in the High Court or Subordinate Courts is harmonised by importation of the current High Court procedure to subordinate courts.
Rules 12 – where a decree for payment of money – this application is by way of chamber summons for the court to agree whether to allow payments by instalments or not.
Procedure under Order 39 does not provide for secrecy and therefore in terms of efficiency a Mareva is better placed to protect the interests of a party.
A practical advocate will go the way of Ochieng J. in Barclays v Christian, and under provisions of Order 39 to show order why security should be furnished.