1. The appeal that forms the subject of this judgment flows from the Memorandum of Appeal dated 29.8.23 wherein The Appellant had instituted a claim against the Respondent in the Small Claims Court, being Milimani SCC COMM E6306 of 2023, for liquidated damages, general damages, and costs.
The Appellant’s case:
2. On 5th October 2023, the trial Court directed that the matter would proceed under Section 30 of the Small Claims Court Act by way of written submissions.The counsel holding brief, did not expressly consent to this mode of hearing.
3. The Appellant subsequently filed an application on 9th October 2023 challenging this procedure and seeking to proceed via viva voce evidence and argues that application was never heard.It submits that judgment was delivered on 3rd November 2023, leaving the application in limbo.
4. Section 30 of the Small Claims Court Act provides that the court may determine any claim based on documents, written statements or submissions “subject to the agreement of all parties.”
5. Article 50(1) of the Constitution of Kenya guarantees the right to a fair hearing, which includes the right to adduce and challenge evidence.
6. Reliance is placed in Odunga’s Digest on Civil Procedure (2023 ed.), it is affirmed that any deviation from express statutory requirements renders proceedings liable to being declared a nullity.
7. Reliance is also placed in Karuri v Chege [2023] KEELC 515 (KLR) where it was held that proceedings conducted without adherence to enabling statute were quashed on appeal.
8. It submits that the proceedings of 5th October 2023 demonstrate that counsel for the Claimant merely prayed for time to respond to a counterclaim.
9. The Court proceeded to render a judgment, which constitutes a material procedural irregularity as a result of which The appellant seeks the following reliefs;
1) That the appeal be allowed with costs.
2) That the judgment of the Small Claims Court delivered on 3rd November 2023 be set aside.
3) That the matter be remitted for retrial before a different adjudicator, with directions that it be heard through viva voce evidence.
4) Any other relief that the Court may deem just.
The Respondent’s case;
10. It is his case that the Small Claims Court proceeded legally within Section 30 of the Small Claims Act.
11. He submits that the parties consented to the matter proceeding as such.
12. He is of the view that the appeal is an afterthought because the appellant did not invoke Section 38 of the Act to set aside the directions as issued under Section 30.
13. The application to set aside the judgment was heard and determined after judgment was rendered according to him.
Analysis and determination:
The issue for determination are;
1) Whether the appeal has merit.
2) Whether the application dated 9th October 2023 was left in limbo by the trial court.
3) Who shall bear the costs.
On the 1st issue:
14. Section 38 (1) of the Act stipulates that;
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. This is exactly what the appellant has done by filing this appeal.
15. Section 30 of the Act provides that, subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
16. The court has gone through the brief proceedings of 5/10/2023 which Reflect as follows;
Mumo holding brief for Harry Karanja for Claimant.
Mulupi for Respondent.
Claimant: Parties have complied with pre-trial documents.
I pray for 7 days to respond to the counter claim and submissions.
Respondent: I pray for 14 days after service.
Court: Judgement 27/10/2023.
Parties have 7 days each to file submissions and pre-trial documents.
17. From these proceedings, it is clear that the adjudicator did a not record that the parties had agreed on how the case would proceed as required under Section 30 of The Act. This is part of the right to fair hearing for litigants.
18. Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.
19. The right to fair hearing is evidently closely intertwined with fair administrative action. The often cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.
20. Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:
84. “The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
21. A fair opportunity to be heard (the audi alteram partem rule) is a none negotiable fundamental principle of justice. From the proceedings of 5.10.23,the court is of the view that there was no agreement in so far as manner in which the matter was to proceed was concerned. This offended the appellant’s right to be heard. This in turn vitiates the judgment.
Whether the application dated 9th October 2023 was left in limbo by the trial court;
22. The court is also satisfied from the record that appellant's notice of motion was dismissed with costs to Respondent on 15 day of November 2023.
23. As such the appellants' argument that it was not determined is misleading.
Determination;
24. The appeal has merit.
Order;
1) That the appeal is allowed with costs.
2) That the judgment of the Small Claims Court delivered on 3rd November 2023 be set aside.
3) That the matter is hereby remitted for retrial before a different adjudicator.
The Appellant’s case:
2. On 5th October 2023, the trial Court directed that the matter would proceed under Section 30 of the Small Claims Court Act by way of written submissions.The counsel holding brief, did not expressly consent to this mode of hearing.
3. The Appellant subsequently filed an application on 9th October 2023 challenging this procedure and seeking to proceed via viva voce evidence and argues that application was never heard.It submits that judgment was delivered on 3rd November 2023, leaving the application in limbo.
4. Section 30 of the Small Claims Court Act provides that the court may determine any claim based on documents, written statements or submissions “subject to the agreement of all parties.”
5. Article 50(1) of the Constitution of Kenya guarantees the right to a fair hearing, which includes the right to adduce and challenge evidence.
6. Reliance is placed in Odunga’s Digest on Civil Procedure (2023 ed.), it is affirmed that any deviation from express statutory requirements renders proceedings liable to being declared a nullity.
7. Reliance is also placed in Karuri v Chege [2023] KEELC 515 (KLR) where it was held that proceedings conducted without adherence to enabling statute were quashed on appeal.
8. It submits that the proceedings of 5th October 2023 demonstrate that counsel for the Claimant merely prayed for time to respond to a counterclaim.
9. The Court proceeded to render a judgment, which constitutes a material procedural irregularity as a result of which The appellant seeks the following reliefs;
1) That the appeal be allowed with costs.
2) That the judgment of the Small Claims Court delivered on 3rd November 2023 be set aside.
3) That the matter be remitted for retrial before a different adjudicator, with directions that it be heard through viva voce evidence.
4) Any other relief that the Court may deem just.
The Respondent’s case;
10. It is his case that the Small Claims Court proceeded legally within Section 30 of the Small Claims Act.
11. He submits that the parties consented to the matter proceeding as such.
12. He is of the view that the appeal is an afterthought because the appellant did not invoke Section 38 of the Act to set aside the directions as issued under Section 30.
13. The application to set aside the judgment was heard and determined after judgment was rendered according to him.
Analysis and determination:
The issue for determination are;
1) Whether the appeal has merit.
2) Whether the application dated 9th October 2023 was left in limbo by the trial court.
3) Who shall bear the costs.
On the 1st issue:
14. Section 38 (1) of the Act stipulates that;
A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. This is exactly what the appellant has done by filing this appeal.
15. Section 30 of the Act provides that, subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
16. The court has gone through the brief proceedings of 5/10/2023 which Reflect as follows;
Mumo holding brief for Harry Karanja for Claimant.
Mulupi for Respondent.
Claimant: Parties have complied with pre-trial documents.
I pray for 7 days to respond to the counter claim and submissions.
Respondent: I pray for 14 days after service.
Court: Judgement 27/10/2023.
Parties have 7 days each to file submissions and pre-trial documents.
17. From these proceedings, it is clear that the adjudicator did a not record that the parties had agreed on how the case would proceed as required under Section 30 of The Act. This is part of the right to fair hearing for litigants.
18. Article 50(1) provides that every person has a right to have any dispute that can be resolved by the application of the law decided in a fair and public hearing before a court or an independent and impartial tribunal or body.
19. The right to fair hearing is evidently closely intertwined with fair administrative action. The often cited case of Ridge vs. Baldwin [1964] AC 40 restated the right to fair hearing as a rule of universal application in the case of administrative acts or decisions affecting rights. In his speech to the House of Lords in 1911, Lord Loreburn aptly put is as a ‘duty lying upon everyone who decides anything’ that may adversely affect legal rights.
20. Halsbury Laws of England, 5th Edition 2010 Vol. 61 at para 639 on the right to be heard states that:
84. “The rule that no person is to be condemned unless that person has been given prior notice of the allegations against him and a fair opportunity to be heard (the audi alteram partem rule) is a fundamental principle of justice. This rule has been refined and adapted to govern the proceedings of bodies other than judicial tribunals; and a duty to act in conformity with the rule has been imposed by the common law on administrative bodies not required by statute or contract to conduct themselves in a manner analogous to a court.”
21. A fair opportunity to be heard (the audi alteram partem rule) is a none negotiable fundamental principle of justice. From the proceedings of 5.10.23,the court is of the view that there was no agreement in so far as manner in which the matter was to proceed was concerned. This offended the appellant’s right to be heard. This in turn vitiates the judgment.
Whether the application dated 9th October 2023 was left in limbo by the trial court;
22. The court is also satisfied from the record that appellant's notice of motion was dismissed with costs to Respondent on 15 day of November 2023.
23. As such the appellants' argument that it was not determined is misleading.
Determination;
24. The appeal has merit.
Order;
1) That the appeal is allowed with costs.
2) That the judgment of the Small Claims Court delivered on 3rd November 2023 be set aside.
3) That the matter is hereby remitted for retrial before a different adjudicator.