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High CourtAllowedNot stated in the judgment text provided· [2020] KEHC 6917 (KLR)
Garnishee/Applicant v Advocate/Respondent (Notice of Motion dated 27th January 2020)
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·~2 min to read original · ~4 min briefThe bottom line
#If a court makes a decision against you without giving you a chance to speak, that decision can be overturned.
What this practically means
#Executive summary
#The High Court (T. W. Cherere J) ruled on a notice of motion dated 27th January 2020 filed by the Garnishee/Applicant in garnishee proceedings against an Advocate/Respondent. The application sought setting aside of an order made against the Garnishee on 5th December 2019, which had been issued without the parties having been heard. The court relied on the Court of Appeal decision in Rahab Wanjiru Evans v Esso (K) Ltd, holding that a matter fixed for mention cannot be heard without the parties' consent and that orders cannot be made before hearing submissions, a position reiterated in the Surgipharm and Ogunde judicial review and civil decisions. The court further invoked Article 50(1) of the Constitution guaranteeing the right to a fair hearing and the audi alteram partem principle from Halsbury's Laws of England. Finding the application merited on the affidavits and counsel's submissions, the court set aside the 5th December 2019 order in its entirety and directed that the underlying Notice of Motion dated 21st November 2019 be disposed of by written submissions, with a timetable for filing responses, further affidavits and submissions by electronic mail, and notification of the ruling date by email. Costs of the application were ordered to be in the cause. The ruling was delivered electronically on 14th April 2020 pursuant to COVID-19 measures and the Chief Justice's directions.
Key legal issues
#01
Whether orders made at a mention without hearing the parties are valid
Holding
Orders made before hearing the parties' submissions are irregular and were set aside in their entirety
Reasoning
The court relied on Court of Appeal authority that a matter fixed for mention cannot be heard without consent and orders cannot precede submissions, reinforced by Article 50(1) fair hearing rights and the audi alteram partem rule. Applying these principles to the affidavits and submissions, the judge found the application merited and set aside the 5th December 2019 order.
p. 1
Legal principles established
#- A matter fixed for mention cannot be heard unless by consent of the parties, and orders cannot be made before hearing submissions of the parties
- No person is to be condemned without prior notice of the allegations and a fair opportunity to be heard (audi alteram partem)
Court orders
#- 1.The court's order made against the Garnishee/Applicant on 5th December 2019 is set aside in its entirety
- 2.The Notice of Motion dated 21st November 2019 shall be disposed of by way of written submissions
- 3.The Respondent to file and serve its response by electronic mail to the Applicant's advocate within seven (7) days
- 4.The Applicant's advocate to have 7 days from service to file and serve, by electronic mail, any further affidavit and written submissions
- 5.Upon service of the Applicant's submissions, the Respondent to file and serve its submissions by electronic mail within 7 days
- 6.The advocates to be notified of the date for delivery of the ruling via electronic mail
- 7.Costs of the application to be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to set aside orders made without hearing the parties; Article 50(1) of the Constitution (right to a fair hearing)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Garnishee/Applicant v Advocate/Respondent (Notice of Motion dated 27th January 2020)", Case Analysis (2020). Not stated in the judgment text provided. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.