Savings & Loan Kenya Ltd v Odongo
The bottom line
#Kenya's Court of Appeal threw out a stay order because the judge made it without hearing both sides first.
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 judge erred in making the stay order without hearing the appellants
- 2.Whether the High Court had jurisdiction, including inherent jurisdiction under section 3A of the Civil Procedure Act, to grant a stay of execution of a decree from which no appeal lies, pending a review application and intended appeal
- 3.Whether the application for stay was misconceived because the underlying decree of November 28, 1986 was not appealable
Key legal issues
#Right to be heard before an interlocutory order is made
The judge granted the stay order without hearing the appellants' advocate who was present, giving no reasons; this violated natural justice and was fatal to the order.
Both majority judges held that parties who appear in court must be heard before a final decision on an application; the record showed attendances were recorded and the order was then made without submissions from either side. This was a miscarriage of justice requiring the order to be set aside and the application reheard by another judge.
Inherent jurisdiction to stay execution of a non-appealable decree pending review/appeal
Platt JA (dissenting) held the High Court had inherent jurisdiction under section 3A of the Civil Procedure Act to preserve the status quo pending appeal, even where the underlying decree was not appealable.
Drawing on Ujagar Singh v Runda Coffee Estates and Indian authorities under section 151 of the Indian Civil Procedure Code, Platt JA reasoned that if a judgment was given without jurisdiction it should not stand, and the court may exercise inherent power in a fit case so the appeal is not rendered nugatory. The test is justice; the landlord would not be greatly prejudiced by awaiting the appeal.
Appealability of Rent Restriction Tribunal and High Court rent decisions
Section 8 of the Rent Restriction Act (cap 296), as amended in 1981, permits no appeal to the Court of Appeal from a High Court determination on appeal from the Tribunal.
Platt JA traced the statutory scheme: section 8(1) provides for no appeal at all, section 8(2) limited appeals to the High Court, and section 8(4) bars appeal from such determinations. The 1981 amendments did not change the position that the High Court is the final court in rent restriction matters.
Legal principles established
#- A judge is duty bound to hear both parties before making an interlocutory order; making an order without hearing a party who is present or represented is a fatal error going to the root of the matter.
- The High Court has inherent jurisdiction, preserved by section 3A of the Civil Procedure Act, to stay execution in the alternative to order XLI rule 4, including to preserve the status quo pending appeal (Platt JA, dissenting).
Court orders
#- 1.Appeal allowed with costs
- 2.Order of the High Court judge dated January 8, 1987 granting stay of execution set aside
- 3.Chamber summons application for stay of execution to be heard by another judge as early as possible
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Held that the judge's failure to hear the appellants before granting the stay was a fatal error going to the root of the matter; would allow the appeal on that ground alone and remit the chamber summons to another judge.
In my judgment that is an error which goes to the root of the matter and is fatal.p. 1
Wrote the judgment
Analysed the Rent Restriction Act's bar on appeals and held the High Court had inherent jurisdiction under section 3A of the Civil Procedure Act to preserve the status quo pending appeal; would have dismissed the appeal with costs.
In my opinion the learned judge came to the right conclusion. I would therefore dismiss the appeal with costs.p. 5
Wrote the judgment
Held the stay order was made without either party being heard, contrary to natural justice, and had nothing on the record to support it; would allow the appeal, set aside the order and direct rehearing by another judge.
The order appealed against was imposed on the parties by the judge. In my view, this is wrong. The order cannot be allowed to stand.p. 6
- On appeal from
- High Court at Mombasa
- Jurisdiction invoked
- First appeal to the Court of Appeal against an order of the High Court (statutory appeal; Rent Restriction Act cap 296 permits no appeal from High Court rent restriction determinations, so the appeal lies against the stay order itself)
Relief refused
#Upholding of the stay order granted by Aragon J
Majority held the order was made without hearing the parties, in breach of natural justice, and could not stand
Costs
Appeal allowed with costs (majority); the dissenting judge would have dismissed the appeal with costs
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.
The very foundation upon which our judicial system rests is that a party who comes to court shall be heard fairly and fully.
A judge who does not hear a party before him or the party’s advocate offends that fundamental principle and it then becomes the duty of this court to tell him so.
The order appealed against was imposed on the parties by the judge. In my view, this is wrong. The order cannot be allowed to stand.
I would allow the appeal with costs, set aside the order of the judge and I would order that the chamber summons be heard by another judge.
jurisdiction is a cardinal matter and may certainly be investigated under the review procedure.
Issues in the judgment
#Gachuhi JA dates the set-aside order January 6, 1987, but the order under appeal is dated January 8, 1987.
Nyarangi JA records Gachuhi JA as agreeing, without acknowledging Platt JA's dissent in the disposition.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Savings & Loan Kenya Ltd v Odongo", Case Analysis (1987). Civil Appeal 6 of 1987. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/90/eng@1987-04-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.