Gulamhussein F. Gulamhussein v Imperial Bank Limited (In Receivership) & Kenya Deposit Insurance Corporation
The bottom line
#Kenya's Court of Appeal ruled a judge cannot delay delivering judgment without giving the winning party notice and a chance to respond.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge erred in withholding delivery of judgment without a formal application on record
- 2.Whether the appellant was afforded an opportunity to be heard before the judgment delivery was withheld
- 3.Whether there is a legal provision permitting withholding of delivery of judgment in the manner done
- 4.Whether the appeal was moot or an abuse of process given the respondents' pending set-aside application
Key legal issues
#Whether withholding delivery of an ex parte judgment without notice breached natural justice
Yes. The appellant was scheduled for delivery of judgment, not for any interlocutory application, and had no notice of the respondents' request to withhold judgment; the breach vitiated the order.
The court held that what was listed on 18th December 2017 was delivery of judgment. The respondents' advocate made an oral request for indulgence without a formal application and without notice to the appellant. Relying on Union Insurance v Dhanji, the court held that an opportunity to be heard requires prior notice of the issue; the appellant had none, so it was condemned unheard on that issue.
Whether the breach was cured by the likelihood of the same outcome
No. Following Onyango v Attorney General, a decision in breach of natural justice is not cured by holding the decision would otherwise have been right.
The court adopted Nyarangi, JA's dictum that the result of a hearing is irrelevant where the principle of natural justice is violated. It therefore found the learned Judge erred in withholding delivery of the judgment, regardless of whether the same decision would have followed had the appellant been heard.
Legal principles established
#- A party can only be deemed to have had a reasonable opportunity to be heard on an issue if given prior notice of that issue.
- A decision in breach of the rules of natural justice is not cured by the fact that the same decision would have been reached after a hearing.
Court orders
#- 1.Appeal allowed with costs
- 2.Orders withholding delivery of the judgment set aside
- 3.Judgment in H.C.C.C No. 44 of 2017 to be delivered as soon as is reasonably practicable
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- H.C.C.C No. 44 of 2017
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (Constitution of Kenya, Article 164; Civil Procedure Act)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.
a party can only be deemed to have been given a reasonable opportunity to be heard as contemplated in Union Insurance Co. of Kenya Ltd. vs. Ramzan Abdul Dhanji (supra) on an issue if he/she is given prior notice of the said issue.
Accordingly, the appeal herein has merit and is hereby allowed with costs. We hereby set aside the orders withholding the delivery of the judgment and direct that the same be delivered as soon as is reasonably practicable.
Issues in the judgment
#Respondent's name misspelled in the cause title
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gulamhussein F. Gulamhussein v Imperial Bank Limited (In Receivership) & Kenya Deposit Insurance Corporation", Case Analysis (2018). Civil Appeal No. 22 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/1063/eng@2019-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.