[2015] KEHC 4369 (KLR)
The court found that there was no evidence that the appellant's counsel was served with a hearing notice for the date when the judgment date was set. Proceeding to deliver judgment in these circumstances would amount to denying the appellant the right to be heard, a fundamental principle of natural justice....
Source-derived case information.
- Citation
- [2015] KEHC 4369 (KLR)
- Parties
- Applicant: Bernasconi Francesco; Respondent: Peter Nyongesa
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 50 of 2008
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Setting Aside Judgment Date
- Outcome
- Order setting judgment date vacated; parties to take fresh date for highlighting submissions.
- Judges
- MM Kasango
- Legal Topics
- Right to Be Heard, Service of Hearing Notice, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernasconi Francesco
Applicant
Peter Nyongesa
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Setting Aside Judgment Date
Legal Issues
- 1 Whether the appellant was denied the right to be heard due to lack of service of hearing notice for the date judgment was set.
- 2 Whether the order setting the judgment date in the absence of the appellant's counsel should be set aside.
Ratio Decidendi
The court found that there was no evidence that the appellant's counsel was served with a hearing notice for the date when the judgment date was set. Proceeding to deliver judgment in these circumstances would amount to denying the appellant the right to be heard, a fundamental principle of natural justice. Therefore, the order made on 30th April 2015 setting the date for judgment was set aside to allow both parties an opportunity to highlight their submissions before judgment is delivered.
Court Disposition
Order setting judgment date vacated; parties to take fresh date for highlighting submissions.
Orders
- The order made on 30th April 2015 setting the date for delivery of judgment is set aside and vacated.
- Parties shall take a fresh date for highlighting their submissions if any.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF MOMBASA
CIVIL APPEAL NO.50 OF 2009
BERNASCONI FRANCESCO ……….APPLICANT
VERSUS
PETER NYONGESA…………….…..RESPONDENT
R U L I N G
Today’s date was given by this court as the date judgment will be delivered in this appeal. However in my perusal of the proceedings I found that on the date an order was made for parties to file their written submissions, that is 5th March 201,5 the appellant was not represented.
1. On 5th March 2015 the court ordered that the written submissions would be highlighted before court on 30th April 2015.
2. On 30th April 2015 the respondent was represented but again appellant was not represented. It is on that day that today’s date was given as the date for delivery of judgment. There was no evidence, and I could not find any in the court file, showing that the appellant’s learned counsel was served with a hearing notice for 30th April 2015. It was therefore in error that a date of judgment was given on that day. If I proceeded to write the judgment I will deny the Appellant a hearing, which he is entitled to.
Accordingly I hereby set aside and vacate the order made on 30th April 2015. Parties shall take fresh date for highlighting their submissions if any.
It is so ordered.
Dated and delivered this 25th day of June 2015.
MARY KASANGO
JUDGE
25. 6.2015
Coram
Before Justice Mary Kasango
C/Assistant- Kavuku
For Appellant:
For Respondent:
Court
Ruling delivered in their presence/absence in open court.
MARY KASANGO
JUDGE