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Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal No. 22 of 2018

Gulamhussein F. Gulamhussein v Imperial Bank Limited (In Receivership) & Kenya Deposit Insurance Corporation

Court of Appeal
6 December 2018
1,358 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The appellant had obtained a Kshs.12,000,000 credit facility from Imperial Bank Limited, secured by a charge over property Block XXVI/187, Flat No. 1. Claiming full repayment and refusal to discharge the charge, it sued in H.C.C.C No. 44 of 2017 and obtained judgment after an ex parte hearing, scheduled for delivery on 18th December 2017. The respondents, unaware of the suit until 1st December 2017, appeared on the delivery date through counsel and orally sought leave to file an application to set aside the ex parte proceedings. Otieno, J. withheld delivery of the judgment pending that application, with costs in the cause. The appellant appealed, contending the Judge acted without a formal application, without hearing the appellant, and without any legal basis. The Court of Appeal allowed the appeal. It held that since only delivery of judgment was scheduled, the appellant had no notice of the respondents' request and was therefore not afforded an opportunity to be heard, contrary to the rules of natural justice. Relying on Mbaki v Macharia and Onyango v Attorney General, the court held that a breach of natural justice is not cured by the probability that the same decision would have been reached after a hearing. The orders withholding delivery of judgment were set aside and the High Court directed to deliver its judgment as soon as reasonably practicable, with costs to the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned Judge erred in withholding delivery of judgment without a formal application on record
  2. 2.Whether the appellant was afforded an opportunity to be heard before the judgment delivery was withheld
  3. 3.Whether there is a legal provision permitting withholding of delivery of judgment in the manner done
  4. 4.Whether the appeal was moot or an abuse of process given the respondents' pending set-aside application

Key legal issues

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01

Whether withholding delivery of an ex parte judgment without notice breached natural justice

Holding

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.

Reasoning

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.

p. 2
02

Whether the breach was cured by the likelihood of the same outcome

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Appeal allowed with costs
  2. 2.Orders withholding delivery of the judgment set aside
  3. 3.Judgment in H.C.C.C No. 44 of 2017 to be delivered as soon as is reasonably practicable

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
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

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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.
p. 2Right 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.
p. 2Notice as precondition to hearing
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.
p. 2Final orders

Issues in the judgment

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minor

Respondent's name misspelled in the cause title

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, "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.