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Court of AppealPartially AllowedCivil Appeal No. 127 of 1999

CHARLES KARURI MBUTU vs SAMUEL MUHORO [2001] KECA 324 (KLR)

Court of Appeal
2 November 2001
JGJ. E. GicheruALA. A. LakhaEOE. Owuor
1,221 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 voided a judge's ruling because he relied on a resurfaced court file without letting either party comment on it first.

What this practically means

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Executive summary

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The appellant sought the respondent's eviction from Plot No. S.6, Majengo, Nyeri Municipality, by a Chamber Summons under Sections 3A and 98 of the Civil Procedure Act. The application was heard unopposed before Osiemo, J., who reserved his ruling. Before delivering it, the original court file - previously unavailable, with proceedings having been conducted in a skeleton file - resurfaced and was sneaked into the skeleton file. On perusing it, the judge discovered that he had earlier dismissed an application to set aside an arbitration award and a review application, and that the award had been adopted as judgment. Relying on this new material, he refused the eviction order, set aside his previous orders of 11th November 1996, 23rd April 1997 and 25th July 1997, and directed that the suit be heard in court. The appellant appealed, contending the ruling should have been confined to the unopposed eviction application. The Court of Appeal held that the resurfaced file constituted new matter on which the judge could not legitimately act without giving the parties an opportunity to be heard; acting on it contravened audi alteram partem. The Court allowed the appeal, set aside the orders made pursuant to the ruling of 19th November 1997, and substituted an order that the eviction application be heard afresh by a judge other than Osiemo, J., with the parties heard on the new matter. Each party was to bear its own costs of the appeal.

Questions the Court framed

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

  1. 1.Whether the learned judge's ruling, based on new matter contained in the resurfaced original file, was made in contravention of the rule of natural justice audi alteram partem
  2. 2.Whether the ruling should have been confined to the eviction application that was served and unopposed

Key legal issues

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01

Whether a judge may base a ruling on new matter that emerged after the hearing without hearing the parties on it

Holding

No. Acting on new matter that emerged after the hearing, without giving the parties an opportunity to be heard on it, contravenes the rule of natural justice audi alteram partem and renders the ruling insupportable.

Reasoning

The original file resurfaced after the eviction application had been argued but before the ruling was written. Its contents changed the judge's entire approach to the application. Because the parties were not given an opportunity to address this new matter, the ruling founded on it was a nullity in the eyes of the Court of Appeal, which set aside the orders and directed a fresh hearing before a different judge.

p. 2
02

Whether the adjudication of the applications to set aside the arbitration award and for review, done without the original file, was sound

Holding

The Court doubted the soundness of those adjudications, observing that the absence of the original file must have been a grave impediment to the judge's handling of the applications.

Reasoning

The judge had dealt with the application to set aside the award and the review application using only a skeleton file whose material content was the arbitration award. The Court observed that the non-availability of the original file must have constituted a grave impediment to the adjudication of those applications, though it did not directly overturn them, instead setting aside the orders flowing from the impugned ruling.

p. 2

Legal principles established

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  • Where new matter emerges after hearing but before a ruling is delivered, the parties must be given an opportunity to be heard on that new matter before the court acts on it; acting on it without such a hearing violates audi alteram partem and renders the ruling insupportable.

Court orders

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  1. 1.Appeal allowed
  2. 2.Orders of the superior court made pursuant to its ruling dated 19th November 1997 set aside
  3. 3.Substituted order that the appellant's application for eviction be heard afresh by a Judge of the superior court other than Osiemo, J., with the parties given an opportunity to be heard on the alleged new matter contained in the original file
  4. 4.Each party to bear his own costs of the appeal

The bench

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

JG
majority
AL
majority
EO
majority
On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 193 of 1992
Jurisdiction invoked
First appeal to the Court of Appeal from the High Court (ruling and order dated 19th November 1997)

Relief refused

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Respondent's submission that the appellant's application for eviction be heard afresh by the same court

The court directed the fresh hearing before a judge other than Osiemo, J., not the same court

p. 2

Costs

Each party will bear his own costs of the appeal.

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.

The learned judge, however, did exactly that in contravention of one of the rules of natural justice - audi alteram partem - that is to say that no man should be condemned unheard and indeed, that both sides should be heard unless one side chooses not to.
p. 2Natural justice - audi alteram partem
We think therefore that the learned judge's ruling based as it was on the alleged new matter contained in the resurfaced original file is insupportable.
p. 2Ruling founded on un-heard new matter is insupportable
Consequently, we allow this appeal with the result that the orders of the superior court made pursuant to that court's ruling dated 19th November, 1997 are set aside and substituted therefor with an order that the appellant's application for eviction referred to at the beginning of this judgment be heard afresh by a Judge of the superior court other than Osiemo, J.
p. 2Final orders - appeal allowed, orders set aside, fresh hearing before a different judge
Each party will bear his own costs of the appeal.
p. 2Costs

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "CHARLES KARURI MBUTU vs SAMUEL MUHORO [2001] KECA 324 (KLR)", Case Analysis (2001). Civil Appeal No. 127 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/324/eng@2001-11-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.