[2020] KEHC 6938 (KLR)
The court found that the order made against the garnishee/applicant on 5th December, 2019 was issued without giving the garnishee an opportunity to be heard, contrary to the audi alteram partem rule and Article 50(1) of the Constitution, which guarantee the right to a fair hearing. The court relied on established...
Source-derived case information.
- Citation
- [2020] KEHC 6938 (KLR)
- Parties
- Respondent: James Aggrey Mwamu T/A Mwamu & Company Advocates; Defendant: African Merchant Assurance Company Limited; Applicant: Diamond Trust Bank Kenya Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 94 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Garnishee Order
- Outcome
- application allowed; garnishee order set aside
- Judges
- TW Cherere
- Legal Topics
- Garnishee Proceedings, Right to Be Heard, Audi Alteram Partem, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Aggrey Mwamu T/A Mwamu & Company Advocates
Respondent
African Merchant Assurance Company Limited
Defendant
Diamond Trust Bank Kenya Limited
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Garnishee Order
Legal Issues
- 1 Whether the garnishee was denied the right to be heard before the order of 5th December, 2019 was made.
- 2 Whether the order against the garnishee/applicant should be set aside for breach of the audi alteram partem rule.
Ratio Decidendi
The court found that the order made against the garnishee/applicant on 5th December, 2019 was issued without giving the garnishee an opportunity to be heard, contrary to the audi alteram partem rule and Article 50(1) of the Constitution, which guarantee the right to a fair hearing. The court relied on established case law and legal commentary affirming that no adverse order should be made without notice and an opportunity to respond. Consequently, the court held that the order must be set aside in its entirety to uphold the principles of natural justice and fair procedure. The court further directed that the substantive application be disposed of by way of written submissions, with clear...
Court Disposition
application allowed; garnishee order set aside
Orders
- The court’s order made against the Garnishee/Applicant on 5th December, 2019 is set aside in its entirety.
- The Notice of Motion dated 21st November, 2019 shall be disposed of by way of written submissions.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
MISC. CIVIL APPLICATION NO 94 OF 2018
IN THE MATTER ADVOCATES ACT CHAPTER 16 LAWS OF KENYA
AND
IN THE MATTER OF AN OF THE ADVOCATE’S BILL OF COSTS ARISING FROM LEGAL SERVICES IN OYUGIS SRM NO. 223 OF 2009 ROYN ODELLO AUDI VERSUS LACOON INVESTMENTS & ANOR
BETWEEN
JAMES AGGREY MWAMU
T/A MWAMU & COMPANY ADVOCATES...................................DECREE HOLDER RESPONDENT
VERSUS
AFRICAN MERCHANT ASSURANCE COMPANY LIMITED........................JUDGMENT DEBTOR
AND
DIAMOND TRUST BANK KENYA LIMITED............................................GARNISHEE/APPLICANT
RULING
1. In the case of Mrs. Rahab Wanjiru Evans vs. Esso (K) Ltd Civil Appeal No. 13 of 1995 [1995-1998] 1 EA 332,the Court of Appeal held that when the matter is fixed for mention, it cannot be heard unless by consent of the parties and that orders cannot be made before hearing submissions of the parties. This position was reiterated in RepublicVs. Anti-Counterfeit Agency & 2 Others Exparte Surgipharm Limited, Nairobi JR Miscellaneous Application No. 11 Of 2012 [2014] eKLRandPaul Odhiambo Ogunde V MaerskKenya Limited [2016] eKLR.
2. Article 50 (1) which underscores the right to be heard and provides that:
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.
3. Further to the foregoing,Halsbury Laws of England, 5th Edition 2010 Vol. 61 para 639 states that:
"the rule that no person is to be condemned unless that person has been given prior notice of the allegations against him, and a fair opportunity to be heard, (the Audi alteram partem rule)is a fundamental principle of justice."
4. I have considered the notice of motion dated 27th January, 2020 in the light of the affidavits on record and submission by counsel for the Applicant and the Respondent and I am persuaded that it is merited.
5. It is therefore hereby ordered THAT:
a) This court’s order made against the Garnishee/Applicant on 5th December, 2019 is set aside in its entirety
b) The Notice of Motion dated 21st November, 2019 shall be disposed off by way of written submissions.
c) The Respondent is thus directed to file, and serve its response, by electronic mail to the Applicant’s advocate within seven (7) days from today’s date
d) The Applicant’s advocate shall have 7 days from the date of service thereof to file and serve, by electronic mail, any further affidavit, if need be, and written submissions
e) Upon service of the Applicant’s submissions, the Respondent shall file and serve its submissions by electronic mail within 7 days
f) The advocates shall be notified of the date for delivery of the ruling via electronic mail
g) Costs of this application shall be in the cause
DELIVERED THIS 14thDAY OF April,2020
T. W. CHERERE
JUDGE
Court Assistants - Ms. Amondi/Ms. Okodoi
For the Garnishee - Mohamed Madhani & Co. Advocates
For the Advocate - Mwamu & Co. Advocates
Order
This ruling has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID -19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March, 2019.