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Court of AppealPartially AllowedCivil Appeal No. 293 of 2010· [2013] KECA 174 (KLR)

Barclays Bank of Kenya Limited v Ramzanali Gulamhussein Nanji Lalalni [2013] KECA 174 (KLR)

Court of Appeal of Kenya
18 October 2013
2,017 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal threw out a judge's decision because he ruled without hearing the lawyers, confirming no order survives a denied fair hearing.

What this practically means

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Executive summary

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This appeal arose from a ruling by Asike-Makhandia, J of the High Court at Kisii dated 4th March 2010, by which the judge disallowed the appellant bank's application to dismiss the respondent's suit for want of prosecution, partly attributing the delay to the disappearance of the court file. On the date fixed for hearing the application, both counsel indicated they were ready to proceed, but the judge, after reading the application and affidavits, delivered an oral ruling without hearing any submissions, describing the application as 'compromised' with directions to fix the suit for hearing. The Court of Appeal (Onyango Otieno, Azangalala and Kantai, JJ.A) in a single judgment of the court allowed the appeal. It held that counsel who indicate readiness to proceed are ready to make submissions, and that the judge's determination of the application without hearing them breached the cardinal rule of natural justice that no one is to be condemned without a fair opportunity to be heard, a right enshrined in Article 50 of the Constitution and reinforced by Matiba v Attorney General and Kiai Mbaki v Gichuhi Macharia. The court declined the appellant's invitation to itself dismiss the suit, holding instead that the appeal succeeds while the suit and the application remain within the High Court's jurisdiction. The court allowed the appeal, set aside the High Court order, and directed that the Notice of Motion be fixed for hearing before a High Court Judge and determined on the merits, with costs of the appeal to the appellant.

Key legal issues

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01

Whether determining an application without hearing counsel who were present and ready to be heard breaches natural justice

Holding

Yes. Both counsel indicated they were ready to proceed and to make submissions; the judge instead ruled on the papers on his own motion. This was a breach of natural justice and the resulting orders could not stand.

Reasoning

The court reproduced the proceedings of 4th March 2010 showing both counsel were ready to be heard. Readiness to proceed meant readiness to make submissions which the judge would consider in determining the application. By ruling without hearing them, the judge committed a fundamental breach of the rule that no man will be condemned without a fair opportunity to be heard, a cardinal principle of natural justice protected by Article 50 of the Constitution. Relying on Matiba v Attorney General, orders flowing from such a breach cannot be sustained, even where parties appear to have accepted the procedure.

p. 4
02

The remedial course where an order is vitiated by breach of natural justice

Holding

The appellate court set aside the judge's order and directed that the Notice of Motion be fixed for hearing and determined on its merits by a High Court Judge, rather than itself dismissing the suit for want of prosecution.

Reasoning

Although the appeal succeeded on the natural justice ground, the court declined counsel's invitation to take over the application and dismiss the suit itself. The application for dismissal for want of prosecution had never been heard on its merits; the proper course was to allow the High Court to hear and determine it afresh, preserving the parties' right to a fair hearing on the substantive application.

p. 5
03

The test for dismissal of a suit for want of prosecution

Holding

Raised by the respondent's counsel, citing Ivita v Kyumbu, but not decided by the court, since the application was remitted for fresh hearing.

Reasoning

The respondent cited Ivita v Kyumbu for the proposition that the test is whether the delay is prolonged and inexcusable and, if so, whether justice can still be done despite the delay; if so, the suit is set down for hearing rather than dismissed, discretion remaining with the court. The court did not adopt or reject this test because it disposed of the appeal on the natural justice ground alone and remitted the application for a merits hearing.

p. 4

Legal principles established

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  • A judge may not determine an application by ruling on the papers without affording counsel who are present and ready an opportunity to make submissions; any order made without hearing the parties is a breach of natural justice and cannot stand.
  • Where an order is vitiated by breach of natural justice, the appellate court should not substitute its own decision on the merits but should leave the matter to be heard and determined by the court of first instance.
  • The right to be heard by a fair and impartial tribunal is constitutionally protected under Article 50 of the Constitution and was jealously guarded even before its promulgation.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the learned Judge of the High Court dated 4th March 2010 set aside
  3. 3.The application by Notice of Motion dated 10th March, 2009 be fixed for hearing before a High Court Judge and be heard and determined on the merits
  4. 4.Costs of the appeal to the appellant

Authorities

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Legislation

  • Constitution of KenyaArticle 50

Cases cited (2)

  • Ivita v Kyumbu
    [1984] KLR 441
  • Kiai Mbaki & Others v Gichuhi Macharia & Anor
    [2005] e KLR 1
On appeal from
High Court of Kenya at Kisii
Kisii HCCC No. 136 of 2001
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court under the Constitution of Kenya and the Appellate Jurisdiction Act (jurisdiction not expressly quoted in the judgment; the appeal lies from a Ruling and Order of the High Court at Kisii)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Barclays Bank of Kenya Limited v Ramzanali Gulamhussein Nanji Lalalni [2013] KECA 174 (KLR)", Case Analysis (2013). Civil Appeal No. 293 of 2010. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/174/eng@2013-10-18

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