KENYA RAILWAYS CORPORATION vs SELFEES SILVERING COMPANY LIMITED (Civil Appeal 48 of 1983) [1984] KECA 9 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a judge's decision made without hearing both parties is invalid and must be decided afresh by another judge.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court ruling of May 16, 1983 dismissing the application to set aside the default judgment should be set aside where the learned judge delivered the ruling without hearing either party
- 2.Whether the proceedings below offended the rules of natural justice
Key legal issues
#Whether a ruling delivered without hearing the parties violates natural justice
Yes. The appeal was allowed because the learned judge dismissed the chamber summons without hearing either party, a serious error of law offending the rules of natural justice.
Both grounds of appeal rested on the fact that the ruling of May 16, 1983 was delivered without either party being heard. Counsel for the respondent conceded this failure. A decision made without affording the parties a hearing cannot stand, as it breaches natural justice and the correct rules of procedure; the remedy was to set the ruling aside and have the summons heard afresh by a different judge.
Whether the underlying circumstances of the default (negligence in the Attorney-General's chambers) justified refusing to set aside the default judgment
The court did not need to decide this point, as the appeal succeeded on the natural justice ground; the application must be reheard by another judge.
The High Court judge had found the delay and failure to file the defence was due to negligence of a clerk in the Attorney-General's chambers, from whom a higher standard was expected, and declined to condone it, dismissing the application under Order IXA Rules 10 and 10 (Cap 21). Because the dismissal was arrived at without a hearing, the merits were left for determination by a different judge on the rehearing of the summons.
Legal principles established
#- A ruling delivered without hearing either party to the application constitutes a serious error of law and a breach of the rules of natural justice, warranting the setting aside of that ruling.
Court orders
#- 1.Appeal allowed with no order as to costs
- 2.The order of the High Court (Aragon, Ag J) of May 16, 1983 set aside
- 3.The chamber summons of May 5, 1983 to be restored to the lists and heard by another judge according to the usual correct rules of procedure
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- Civil Suit 1012 of 1982
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over rulings of the High Court (first appeal from Civil Suit 1012 of 1982)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
First, the ruling of the learned judge was delivered without hearing either party to the application and, secondly, the proceedings were, therefore, against the rules of natural justice.
concedes that the learned judge did not hear either party so faced with this serious error of law, the appeal must be allowed with no order as to costs
the chamber summons filed on May, 5 must be heard by another judge according to the usual correct rules of procedure and we so order
Where judgment has been entered under this Order, the court may set aside or vary such judgment and any consequential decree or order upon such terms as are just.
Issues in the judgment
#The judgment twice renders the party's name inconsistently ('SELFEES SILVERING COMPANY LIMITED' in the title versus 'Selfees Silvering Company Limited' in the body, and 'the Attorney’s chambers' vs 'the Attorney-General’s chambers'), and contains apparent typographical errors ('it’s summons', 'self-addressed' rendering of www.kenyalawreports.or.ke text).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "KENYA RAILWAYS CORPORATION vs SELFEES SILVERING COMPANY LIMITED (Civil Appeal 48 of 1983) [1984] KECA 9 (KLR)", Case Analysis (1984). Civil Appeal 48 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1984/9/eng@1984-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.