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Court of AppealAllowedCivil Appeal 48 of 1983

KENYA RAILWAYS CORPORATION vs SELFEES SILVERING COMPANY LIMITED (Civil Appeal 48 of 1983) [1984] KECA 9 (KLR)

Court of Appeal
30 January 1984
865 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Kenya Railways Corporation appealed a ruling of the High Court at Mombasa (Aragon, Ag J) of May 16, 1983 which dismissed its chamber summons of May 5, 1983 seeking to set aside a judgment entered in default of defence in favour of Selfees Silvering Company Limited. The respondent had claimed Shs 119,568/60 for 9 cases of float glass damaged in carriage by rail from Kilindini to Nairobi under an owner's risk consignment note. Judgment in default was entered on February 3, 1983 after the Attorney-General failed to file a defence despite the statutory notice under section 87 of the Kenya Railways Corporation Act (Cap 397) being served. The default was attributed to a State Counsel being on leave and postal delays. The High Court judge declined to condone the negligence of the Attorney-General's chambers and dismissed the application. The Court of Appeal allowed the appeal on two grounds: that the ruling was delivered without hearing either party, and that the proceedings therefore offended the rules of natural justice - a concession made by the respondent's counsel. The court set aside the High Court ruling, ordered that the chamber summons be restored and heard by a different judge according to the usual correct rules of procedure, and made no order as to costs. The judgment establishes that a ruling delivered without a hearing is a serious error of law which cannot stand, as a decision of the whole court.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the proceedings below offended the rules of natural justice

Key legal issues

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01

Whether a ruling delivered without hearing the parties violates natural justice

Holding

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.

Reasoning

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.

p. 2
02

Whether the underlying circumstances of the default (negligence in the Attorney-General's chambers) justified refusing to set aside the default judgment

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Appeal allowed with no order as to costs
  2. 2.The order of the High Court (Aragon, Ag J) of May 16, 1983 set aside
  3. 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

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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.
p. 2Grounds of appeal - 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
p. 2Outcome and concession
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
p. 2Final orders - rehearing before a different judge
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.
p. 2Order IXA rule 10 - discretion to set aside default judgment

Issues in the judgment

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minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.