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High CourtAllowedNot stated in the judgment text· [2020] KEHC 6938 (KLR)
Garnishee/Applicant v Respondent (Notice of Motion dated 27th January 2020)
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·~2 min to read original · ~4 min briefThe bottom line
#Kenyan courts must hear both sides before issuing binding decisions, even during routine court mentions.
What this practically means
#Executive summary
#This is a first-instance High Court ruling by T. W. Cherere J delivered electronically on 14th April 2020 during the COVID-19 court operation restrictions. The Garnishee/Applicant moved the court by notice of motion dated 27th January 2020 seeking to set aside an order made against it on 5th December 2019 in garnishee proceedings. The complaint was that the order was made at a mention without the parties having been heard. The court applied the Court of Appeal decision in Rahab Wanjiru Evans v Esso (K) Ltd, as reiterated in the Surgipharm and Ogunde cases, holding that a matter fixed for mention cannot be heard without the parties' consent and that orders cannot be made before hearing the parties' submissions. The court also invoked Article 50(1) of the Constitution on the right to a fair hearing and the audi alteram partem principle from Halsbury's Laws of England. Finding the motion merited on the affidavits and counsel's submissions, the court set aside the 5th December 2019 order in its entirety, directed that the Notice of Motion dated 21st November 2019 be disposed of by written submissions, set a timetable for the Respondent's response, further affidavits and submissions by electronic mail, and ordered notification of the ruling date by email. Costs of the application were made costs in the cause. The Respondent's substantive motion remains pending for determination on written submissions.
Key legal issues
#01
Whether orders made at a mention without hearing the parties' submissions are valid
Holding
The order made against the Garnishee on 5th December 2019 was set aside in its entirety because it was made without hearing the parties.
Reasoning
The court relied on Court of Appeal authority (Rahab Wanjiru Evans v Esso (K) Ltd) and its progeny establishing that a matter fixed for mention cannot be heard without consent and orders cannot precede submissions. This was reinforced by Article 50(1) on the right to a fair hearing and the audi alteram partem rule from Halsbury's Laws. The motion was found merited on the affidavits and submissions.
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.This 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 off by way of written submissions
- 3.The Respondent to file and serve its response by electronic mail within seven (7) days
- 4.The Applicant's advocate to have 7 days from service to file and serve any further affidavit and written submissions by electronic mail
- 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 this application shall be in the cause
- Jurisdiction invoked
- Inherent power to set aside orders made without hearing; 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 Respondent (Notice of Motion dated 27th January 2020)", Case Analysis (2020). Not stated in the judgment text. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.