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Court of AppealPartially AllowedCivil Appeal 86 of 2003

Purshotam Ramji Kotecha & another v Narandas Ranchoddas Pau & another [2006] KECA 21 (KLR)

Court of Appeal of Kenya
15 December 2006
EOE. O. O'KubasuEGE. M. GithinjiJOJ. W. Onyango Otieno
3,872 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 Kshs.2.5 million partnership judgment because the defendants were never allowed to present their side of the case.

What this practically means

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Executive summary

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Four partners in the New Bunyore Jaggery Company, purchased in 1978, fell into dispute over accounts and profit shares. The first respondent commenced proceedings by originating summons seeking accounts and payment of partnership profits; it was later amended to seek dissolution of the partnership. By directions of 15th May 2002, Tanui J deemed the amended originating summons and supporting affidavit the plaint and the appellants' replying affidavit the defence, and ordered the matter decided on viva voce evidence. After the plaintiffs closed their case, the appellants' application to file a written statement of defence was refused - the Judge reasoning that a replying affidavit already stood as the defence - yet the matter was fixed for submissions and in the final judgment the Judge held there was no replying affidavit on record and barred the defendants from testifying. The High Court ordered production of accounts, payment of Kshs.1,263,609 to each plaintiff with 24% p.a. interest, dissolution of the partnership, and costs against the defendants. Allowing the appeal on grounds of natural justice, the Court of Appeal held that the replying affidavit deemed the defence was on record, that the Judge erroneously failed to consider it, and that the appellants were denied the right to be heard in a contentious matter. Relying on Adolf Gitongah Wakahihia v Mwangi Thiongo, the court declared the judgment a nullity, set it aside, remitted the suit for hearing afresh before another Judge (Tanui J having retired), and awarded the appellants the costs of the appeal. The remaining grounds were left undetermined to avoid prejudicing the retrial.

Questions the Court framed

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

  1. 1.Whether the superior court erred in failing to consider the replying affidavit on record which had been deemed the defence
  2. 2.Whether the appellants' exclusion from giving evidence in their defence breached the rules of natural justice and vitiated the judgment

Key legal issues

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01

Whether the right to be heard was breached where a replying affidavit deemed to be the defence was on record but the defendants were barred from testifying

Holding

The learned Judge's own directions deemed the replying affidavit the defence; his later ruling that no replying affidavit existed, and his barring of the appellants from testifying on that basis, was erroneous and denied the appellants a hearing.

Reasoning

The court traced the procedural history: the 15th May 2002 directions deemed the amended originating summons and supporting affidavit the plaint and the replying affidavit the defence. Issues were framed from those pleadings. Yet at the close of the plaintiffs' case the Judge rejected the draft defence because a replying affidavit was already on record, but then fixed the matter for submissions rather than for the defence case, and in the judgment stated there was no replying affidavit. The result was that the defendants were never heard, an added injustice that rendered the proceedings unfair.

p. 6
02

Effect on the judgment of a hearing conducted without one side being heard

Holding

The judgment was a nullity in the interest of justice and had to be set aside, following the authority of Adolf Gitongah Wakahihia v Mwangi Thiongo.

Reasoning

Citing Adolf Gitongah Wakahihia v Mwangi Thiongo, the court held that where judgment is imposed on parties without being heard, the judgment is vitiated. The lapse was attributed to the court's own directions and apparent lapse of memory; even counsel's failure would not excuse the court's duty. Fair play required that the whole judgment be set aside and the suit heard afresh.

p. 6

Legal principles established

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  • A judgment entered against a party who was not accorded the opportunity to be heard is a nullity and cannot stand, regardless of any failing on the part of that party's advocate.
  • The court has a non-delegable duty to ensure every party before it is afforded a reasonable opportunity to be heard before a decision is made, even where the party's advocate has been negligent.

Court orders

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  1. 1.The appeal is allowed
  2. 2.The judgment delivered on 26th February 2003 is set aside
  3. 3.The suit is remitted to the superior court for hearing afresh before another Judge
  4. 4.The appellants will have the costs of this appeal

The bench

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

EO
majority
EG
majority
JO
majority
On appeal from
High Court of Kenya at Kisumu
H.C.C.C No. 449 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal against the judgment and decree of the High Court (superior court) in a partnership dispute

Relief refused

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Determination of the remaining grounds of appeal (including disputes over contributions to the partnership capital and profit-sharing ratios)

The court declined to consider the other grounds so as not to prejudice the fair hearing of the case on remand

p. 6

Costs

The appellants will have the costs of this appeal. (The High Court's order that the defendants bear the costs of the suit falls away with the setting aside of that judgment.)

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.

In the result, this appeal is allowed. The judgment delivered on 26th February 2003 is hereby set aside, and the suit is remitted to the superior court for hearing afresh.
p. 6Final orders - appeal allowed, judgment set aside, retrial ordered
we have no alternative in this case, but to accept that the superior court’s judgment delivered on 26th February, 2003 was a nullity. It cannot stand.
p. 6Nullity of judgment rendered in breach of natural justice
the duty of the court to ensure that every party that is before it is afforded all reasonable opportunities to be heard and is heard in its case before a decision is made on the entire case.
p. 6Court's duty to ensure a fair hearing
the appellants were not accorded their right to be heard in a matter so contentious that no proper and fair decision could be made without hearing both sides.
p. 6Breach of the right to be heard

Issues in the judgment

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minor

The High Court ruling as quoted refers to directions given on 15th May 2001, whereas the record elsewhere shows the directions were made on 15th May 2002 - a date discrepancy within the judgment.

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, "Purshotam Ramji Kotecha & another v Narandas Ranchoddas Pau & another [2006] KECA 21 (KLR)", Case Analysis (2006). Civil Appeal 86 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2006/21/eng@2006-12-15

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