[2012] KEHC 5840 (KLR)
The court found that the claimant was not afforded an opportunity to be heard due to a procedural mishap involving a fire drill and subsequent confusion about the hearing date. Upholding the constitutional right to a fair hearing under Article 50(1), the court determined that it would be unjust to allow a ruling to...
Source-derived case information.
- Citation
- [2012] KEHC 5840 (KLR)
- Parties
- Applicant: Charles Odhiambo Kisera; Respondent: The Makini School Ltd.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Cause 1206 of 2010
- Procedural Posture
- Stay Application / Ruling on Application to Stay Delivery of Ruling and Set Aside Proceedings
- Outcome
- Application allowed; intended ruling set aside; matter to proceed interpartes.
- Judges
- HS Wasilwa
- Legal Topics
- Natural Justice, Right to Be Heard, Setting Aside Orders, Ex Parte Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Odhiambo Kisera
Applicant
The Makini School Ltd.
Respondent
Procedural Posture
Stay Application / Ruling on Application to Stay Delivery of Ruling and Set Aside Proceedings
Legal Issues
- 1 Whether the claimant should be granted a stay of the intended ruling delivered in his absence.
- 2 Whether the proceedings and orders made in the claimant's absence should be set aside or reviewed to allow him to be heard.
Ratio Decidendi
The court found that the claimant was not afforded an opportunity to be heard due to a procedural mishap involving a fire drill and subsequent confusion about the hearing date. Upholding the constitutional right to a fair hearing under Article 50(1), the court determined that it would be unjust to allow a ruling to be delivered in the claimant's absence. The court emphasized that natural justice requires every party to be given a chance to present their case. Consequently, the intended ruling was set aside and the application was ordered to be heard interpartes to ensure fairness and compliance with constitutional standards.
Court Disposition
Application allowed; intended ruling set aside; matter to proceed interpartes.
Orders
- Intended ruling on Notice of Motion dated 3rd November, 2010 set aside.
- Application to be set for hearing interpartes forthwith.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
Cause 1206 of 2010
CHARLES ODHIAMBO KISERA ……………...……………………………………….CLAIMANT
VS
THE MAKINI SCHOOL ……………………………………………………………. RESPONDENT
RULING
The application in court is the one dated 23rd November 2011 filed by the claimant Applicant herein Charles Odhiambo Kisera against the Respondent the Makini School Ltd.
The Applicant seeks orders to stay an intended ruling coming out of the Respondent Notice of motion dated 25th March, 2011. This application was filed in court and heard exparteon 30th March, 2012. On this day the court orderted that this Notice of Motion be served upon the claimants. The Claimants were also granted leave to reply to the application within 30 days from 30th March, 2011. The application was then scheduled to be heard on 9th May 2011 at 9. 00 a.m.On the 9th May, 2011, the application was again adjourned to 29th June 2011 and thereafter to 13th September, 2011.
When the application came up now on 13th September, 2011, the Claimant Applicant was absent. The court proceeded with the hearing of this application in the absence of the claimant. A ruling was set to be delivered on notice.
Before the Ruling could be delivered, the claimant applicant filed this application on 23rd November, 2011, praying that there be an interim stay of Ruling and/or any order issued in respect of the application dated 25th March, 2011, and that the proceedings thereafter be set aside/or reviewed and varied.
Through his supporting affidavit, the Claimant avers that he has always attended court dutifully without fail. That the last day of 29th June 2011, he was in court and ready to proceed. However there was a fire drill within the building which disrupted the proceedings. The matter was then adjourned to 30th September 2011. He later learnt it was adjourned to 13th September 2011, and was heard in his absence. He came to learn that the same is pending for a ruling. It is this ruling that this application seeks to be stayed so that he can be given a chance to present his case. This application was heard exparte as the Respondent though served, failed to attend the court.
It is a principle of natural justice, that a man should not be condemned unheard. This principle is enshrined in our Constitution under Article 50 (1) which states as follows:-
(1)“Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body”.
I now order that:-
1. Intended ruling on Notice of Motion dated 3rd November, 2010 be set aside.
2. The application be set for hearing interpartes forthwith.
3. Costs in the cause.
Read, delivered and signed this 27th day of September 2012, in the presence of the Court Clerk; Rachel Gichuki, Mr. Omondi holding brief for M/s Hayanga for Respondent and Claimant in person.
HELLEN WASILWA
JUDGE