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Court of AppealAllowedCivil Appeal No 199 of 2015· [2017] KECA 662 (KLR)

Gaturu & another v Naiposha Company Ltd & 13 others (Civil Appeal 199 of 2015) [2017] KECA 662 (KLR)

Court of Appeal of Kenya
24 March 2017
4,015 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal ruled that any court order made against you without proper notice and a fair hearing is void, even if you were in court when it was made.

What this practically means

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Executive summary

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Two advocates appealed against an order of Gikonyo, J. dated 10th June 2015 requiring them, within seven days, to deposit in court sums of money received or held pursuant to professional undertakings given in connection with the sale of LR No. 398/15, Naivasha, whose proceeds were to settle a decree in an arbitral dispute and payments to interested parties. The High Court order was made in a Notice of Motion filed by Mbichire & Co. Advocates on the very morning of a scheduled mention, framed under sections 50, 51, 52 and 68(1) of the Land Registration Act, 2012 but in substance seeking enforcement of the appellants' undertakings. The application was neither certified urgent nor served on the appellants before it was determined; it was served on the 1st appellant five days after the orders were issued. The Court of Appeal held that Order 52 rule 7 of the Civil Procedure Rules prescribes the exclusive and mandatory procedure for enforcing an advocate's undertaking, non-compliance rendering any order a nullity, and that Order 51 rules 3 and 13(3), informed by Article 50 of the Constitution and the rules of natural justice, required notice and a fair opportunity to be heard before adverse findings against the appellants. Their compelled appearance in court did not amount to a fair hearing. The Court allowed the appeal, set aside the orders of 10th June 2015 and all consequential orders, and awarded the appellants the costs of the appeal.

Key legal issues

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01

Procedure for enforcing an advocate's professional undertaking

Holding

Order 52 rule 7 of the Civil Procedure Rules prescribes the exclusive and mandatory procedure; resort to unrelated provisions of the Land Registration Act, 2012 was misconceived.

Reasoning

Mbichire & Co. Advocates' real intention, despite the framing of their Notice of Motion under the Land Registration Act, was to enforce the appellants' undertakings to disburse the purchase price. The Civil Procedure Rules provide a specific procedure for enforcement of undertakings, and this Court in Oraro & Rachier Advocates v. Co-operative Bank of Kenya Ltd held it mandatory and strict compliance essential. Bypassing it renders any resulting order a nullity.

p. 7
02

Right to a fair hearing before an adverse order

Holding

The hearing on 10th June 2015 was a nullity because the Motion had neither been certified urgent nor served on the appellants; their compelled appearance did not amount to a fair hearing.

Reasoning

Order 51 rule 3 requires notice of a motion to parties affected, and Order 51 rule 13(3) requires service not less than seven clear days before the hearing. The Motion was served on the 1st appellant only on 15th June 2015, five days after the orders were made. Article 50 of the Constitution guarantees a fair hearing, implicit in which is notice of allegations and opportunity to rebut, including by replying affidavit. The appellants' attendance on being directed to appear did not cure the breach.

p. 7
03

Effect of breach of natural justice on the outcome

Holding

A decision made in breach of natural justice must be declared no decision, regardless of whether the same result would have followed a fair hearing.

Reasoning

Relying on General Medical Council v. Spackman and Onyango Oloo v. Attorney General, the Court held that a violation of natural justice vitiates the decision entirely. The fact that the interested parties may not have been paid in full, or that the appellants may have breached their undertakings, could not save orders made without affording the accused advocates a fair hearing.

p. 7
04

Professional obligations of advocates as officers of the court

Holding

Advocates must honour their professional undertakings, but accusations of dishonourable conduct must be adjudicated after a fair hearing.

Reasoning

The Court affirmed the principle that advocates' word must be their bond, since judicial and commercial work depends on the sanctity of undertakings. Precisely because the appellants faced allegations carrying a blight on character and reputation, the demands of natural justice were heightened, and the failure to afford a fair hearing before condemning them was aggravated rather than excused by their professional status.

p. 6

Legal principles established

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  • An application to enforce an advocate's professional undertaking must strictly follow Order 52 rule 7 of the Civil Procedure Rules; orders made in contravention of it are a nullity.
  • No adverse order may be made against a party who has not been served with notice of the application; appearance when directed by the court does not cure the absence of service.
  • A decision reached in breach of natural justice cannot stand even if the same result would have been reached after a fair hearing.
  • The default first-instance order on an enforcement application is that the advocate honour the undertaking within a fixed time before coercive enforcement measures are taken.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the High Court of 10th June 2015 set aside
  3. 3.All consequential orders set aside
  4. 4.Appellants awarded costs of the appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50
  • Civil Procedure RulesOrder 52 rule 7
  • Civil Procedure RulesOrder 51 rule 3
  • Civil Procedure RulesOrder 51 rule 13(3)
  • Land Registration Act, 2012sections 50, 51, 52(1), (2) and (3), 68(1)
  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (8)

  • Onyango Oloo v. Attorney General
    [1986-1989] EA 456
  • Central Organisation of Trade Unions v. Benjamin K. Nzioka & Others
    CA No. 166 of 1993
  • Prime Start Works Ltd v. Kenya Industrial Plastics Ltd
    [2001] EA 528
  • Peter Ng'ang'a Muiruri v Credit Bank & Another
    CA No. 263 of 1998
  • Oraro & Rachier Advocates v. Co-operative Bank of Kenya Ltd
    CA No. 154 of 2000
  • General Medical Council v. Spackman
    [1943] 2 All E.R. 337
  • Pashito Holdings Ltd. & Another v. Paul Nderitu Ndun'gu & Others
    [1997] 1 KLR (E & L)
  • Mbaki & Others v. Macharia & Another
    (2005) 2 EA 206
On appeal from
High Court of Kenya
Miscellaneous Civil Application No. 222 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal Rules (the appellants initially sought relief under rule 5(2)(b) of the Court of Appeal Rules); no specific constitutional or statutory appellate provision is cited in the judgment.

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, "Gaturu & another v Naiposha Company Ltd & 13 others (Civil Appeal 199 of 2015) [2017] KECA 662 (KLR)", Case Analysis (2017). Civil Appeal No 199 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/662/eng@2017-03-24

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