[2020] KEHC 6923 (KLR)
The court found that the order made against the garnishee on 5th December, 2019 was issued without affording the garnishee an opportunity to be heard, in violation of the audi alteram partem rule and Article 50(1) of the Constitution. The court emphasized that no party should be condemned without notice and a fair...
Source-derived case information.
- Citation
- [2020] KEHC 6923 (KLR)
- Parties
- Applicant: James Aggrey Mwamu t/a Mwamu & Company Advocates; Respondent: African Merchant Assurance Company Limited; Respondent: Diamond Trust Bank Kenya Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 95 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Set Aside Garnishee Order
- Outcome
- application allowed; previous order set aside; directions for written submissions issued
- Judges
- TW Cherere
- Legal Topics
- Garnishee Proceedings, Right to Be Heard, 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
Applicant
African Merchant Assurance Company Limited
Respondent
Diamond Trust Bank Kenya Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion 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 should be set aside for failure to accord a fair hearing.
Ratio Decidendi
The court found that the order made against the garnishee on 5th December, 2019 was issued without affording the garnishee an opportunity to be heard, in violation of the audi alteram partem rule and Article 50(1) of the Constitution. The court emphasized that no party should be condemned without notice and a fair hearing. Consequently, the court set aside the impugned order and directed that the substantive application be disposed of by way of written submissions, ensuring both parties are given a fair opportunity to present their cases.
Court Disposition
application allowed; previous order set aside; directions for written submissions issued
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
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
(CORAM: CHERERE-J)
MISC. CIVIL APPLICATION NO 95 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 ARISINGFROM LEGAL SERVICES
IN OYUGIS SRM NO. 220 OF 2009 LAVENDER ATIENO VERSUS LACOON INVESTMENTS & ANOR
BETWEEN
JAMES AGGREY MWAMU t/a
MWAMU &COMPANY ADVOCATES...........................APPLICANT/DECREE HOLDER
VERSUS
AFRICAN MERCHANT ASSURANCECOMPANY LIMITED......JUDGMENT DEBTOR
AND
DIAMOND TRUST BANK KENYA LIMITED...................................................GARNISHEE
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 14th DAY 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.