[2020] KEHC 10149 (KLR)
The court found that, due to the absence of the parties' written submissions on the e-filing platform, it could not proceed to consider or determine the appeal on its merits. In the interest of justice and to ensure a fair hearing, the court exercised its discretion to set aside the previous orders fixing a judgment...
Source-derived case information.
- Citation
- [2020] KEHC 10149 (KLR)
- Parties
- Appellant: Housing Finance Company of Kenya Limited; Respondent: Brick & Mortar Holdings Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 007 of 2018
- Procedural Posture
- Civil Appeal / Pre Hearing; Orders on Hearing De Novo Due to Missing Submissions
- Outcome
- Orders of 17th September 2020 set aside; appeal to be heard de novo before the incoming judge.
- Judges
- MM Kasango
- Legal Topics
- Appeal Procedure, Hearing De Novo, Judicial Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Housing Finance Company of Kenya Limited
Appellant
Brick & Mortar Holdings Limited
Respondent
Procedural Posture
Civil Appeal / Pre Hearing; Orders on Hearing De Novo Due to Missing Submissions
Legal Issues
- 1 Whether the appeal can proceed in the absence of parties' written submissions.
- 2 Whether the previous orders setting a judgment date should be set aside due to lack of submissions.
- 3 Whether the appeal should be heard de novo before the incoming judge.
Ratio Decidendi
The court found that, due to the absence of the parties' written submissions on the e-filing platform, it could not proceed to consider or determine the appeal on its merits. In the interest of justice and to ensure a fair hearing, the court exercised its discretion to set aside the previous orders fixing a judgment date. The court further directed that the appeal be heard afresh (de novo) before the incoming judge, given the transfer of the presiding judge from the division. This approach upholds the principles of fair hearing and due process, ensuring that both parties have the opportunity to present their arguments and that the appeal is determined on a complete record.
Court Disposition
Orders of 17th September 2020 set aside; appeal to be heard de novo before the incoming judge.
Orders
- The orders of 17th September 2020 are set aside.
- The appeal shall be heard de novo before the incoming judge.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND TAX DIVISION
CIVIL APPEAL NO. 007 OF 2020
FORMER CIVIL APPEAL NO. 511 OF 2018
HOUSING FINANCE COMPANY OF KENYA LIMITED..............APPELLANT
- VERSUS –
BRICK & MORTAR HOLDINGS LIMITED..............................RESPONDENT
RULING
1. On 9th July 2020 this court directed the parties to file their written submissions to the appeal. When the matter came up before court on 17th September 2020 the court gave a judgment date on the understanding that the parties had filed their submission.
2. When I accessed the E-filing platform of this Division I was unable to trace a file under this case number. Consequently, I did not have the benefit of considering the parties’ submission to the appeal if any.
3. I am presently on transfer from this Division and accordingly I will give parties another date before the incoming judge for this appeal to be heard denovo. I therefore set aside the orders of 17th September 2020 and direct this appeal be heard before the incoming judge.
DATED, SIGNED and DELIVERED at NAIROBI this7thday of OCTOBER2020.
MARY KASANGO
JUDGE
Before Justice Mary Kasango
C/A Sophie
For the Appellant
For the Respondent
ORDER
This decision is hereby virtually delivered this 7thday of October, 2020.
MARY KASANGO
JUDGE