[2008] KEHC 380 (KLR)
The court found that it had made a ruling on the Originating Summons without the parties having argued the issues raised therein. This constituted a procedural error and a breach of the rule of natural justice, which requires that both parties be heard before a decision is made. The court acknowledged that the...
Source-derived case information.
- Citation
- [2008] KEHC 380 (KLR)
- Parties
- Plaintiff: Punda Milia Co-op Society; Defendant: Savings & Loans (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 273 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Review of Court Orders
- Outcome
- Application for review allowed; proceedings and ruling set aside; matter to be heard afresh before another court.
- Legal Topics
- Review of Orders, Natural Justice, Injunctions, Error on Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Punda Milia Co-op Society
Plaintiff
Savings & Loans (K) Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Court Orders
Legal Issues
- 1 Whether the court made a ruling on the Originating Summons without hearing the parties on those issues.
- 2 Whether there was a mistake or error on the record justifying review, setting aside, or variation of the ruling.
- 3 Whether the principles of natural justice were breached by the court's actions.
Ratio Decidendi
The court found that it had made a ruling on the Originating Summons without the parties having argued the issues raised therein. This constituted a procedural error and a breach of the rule of natural justice, which requires that both parties be heard before a decision is made. The court acknowledged that the mistake was apparent on the record, as the handwritten notes showed the ruling was made on the Originating Summons rather than the Chamber Summons that had actually been argued. Consequently, the court set aside the proceedings and the ruling of 07.10.08 and directed that the application be placed before another court for hearing and determination. The interim orders previously...
Court Disposition
Application for review allowed; proceedings and ruling set aside; matter to be heard afresh before another court.
Orders
- The proceedings of 07.10.08 and the ruling thereof are set aside.
- The application is to be placed before another court for hearing and determination.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 273 of 2008
PUNDA MILIA CO-OP SOCIETY……………………………….….…… PLAINTIFF
VERSUS
SAVINGS & LOANS (K) LTD……………..…………………………..DEFENDANT
RULING
Application dated 07. 10. 08 for review of orders made by this court. The outstanding prayer is No.3 in the Notice of motion.
Grounds are that the court delivered a ruling on an Originating Summon that is yet to be heard. That there was a mistake or error and there exists sufficient cause to review, set aside and /or vary the ruling.
The Chamber Summons dated 22. 05. 08 was seeking orders under XXXIX Rule 1 & 9. While the Originating Summons was brought under order XXXVI Rule 1 & 3, one of the prayers being whether injunction should issue and other orders.
The application heard on 10. 07. 08 is the chamber summons dated 22. 05. 08 for injunction was argued on the material contained in the Chamber Summons and Affidavits filed. But when the court wrote the Ruling, the handwritten record shows that the Ruling was on Originating Summons dated on 22. 05. 08. The Court proceeded to answer the questions stated under the Originating Summons numbered 1, 2 and 3.
It is quite clear that the court made the ruling under a mistake resulting in an error on record. The issues raised in the Originating Summons were never argued by the parties.
This is in contradiction to the rule of natural justice “hear both parties” before a decision can be made.
I therefore set aside the proceedings of 07. 10. 08 together with the Ruling thereof and order that the application be placed before another court for hearing and determination.
However, interim orders granted on 28. 08. 08 are reinstated pending hearing and determination of the said application dated 22. 05. 08.
It is so ordered.
DATED this 27th day of November, 2008.
JOYCE N. KHAMINWA
JUDGE