HEARING

INTRODUCTION
 HEARING
OBJECTIVES
Case Preparation: Understand strategies for preparing for a hearing, including gathering
evidence, preparing witnesses, and drafting legal documents.
Ethical Considerations: Discuss ethical issues that may arise in hearings, such as conflicts
of interest, confidentiality, and honesty with the court.
Importance of Attendance: Emphasize the importance of attending hearings, as failure
to do so can result in adverse consequences.
Consequences of Non-Attendance: Discuss the potential consequences of failing to
attend a hearing, such as default judgments, sanctions, or adverse rulings.
 HEARING
OBJECTIVES
Understanding Hearing Procedures: Explain the typical procedures followed in different
types of hearings, including administrative, civil, and criminal hearings.
Case Studies: Use case studies or examples to illustrate the consequences of non-
attendance and how they could have been avoided.
Role of Legal Counsel: Explain the role of legal counsel in advising clients on attending
hearings and representing them in court.
 HEARING
◦ Order 12 of the Civil Procedure Rules deals with Hearings and the consequences of non-attendance.
◦ Rule 1 states thus: If on the day fixed for hearing, after the suit has been called on for hearing outside the
court, neither party attends, the court may dismiss the suit. In practice the court will mark the matter as
stood over generally if it considers the case to be weighty.
◦ Rule 2 - If only the Plaintiff attends and he is able to establish that the defendant had notice of the
hearing date the court may proceed ex-parte. If the plaintiff is not able to establish service of notice the
court will order that another hearing date be taken and notice of such hearing date be served. The
same will be the case if the notice given to the Defendant was too short.
◦ Rule 3 - If only the Defendant attends and he admits no part of the claim the suit will be dismissed except
for good cause to be recorded by the court. If the Defendant admits part of the claim judgment will be
entered against him to the extent of the admission and the suit will be dismissed with respect to the
remainder of the Plaintiff’s claim except with good cause to be recorded by the court.
◦ If the Defendant had counterclaimed he may proceed to prove his counterclaim so far as the burden of
proof lies with him.
 HEARING
◦ Rule 4 - If only some of the Plaintiffs attend the court may either proceed with the suit or make such other
order as is just. In practice courts postpone the hearing unless the absent Plaintiffs are shown to be in the
habit of failing to attend court on the hearing date.
◦ Rule 5 - If only some of the Defendants attend and the Plaintiff is present the court shall proceed with the
suit and shall give such judgment as is just against the Defendants who have not attended.
◦ Rule 6 - When a suit has been dismissed under Order 12 the Plaintiff can subject to the Limitation of
Actions Act file a fresh suit except where the suit has been dismissed under Rule 3. (i.e where only the
Defendant attended).
◦ Rule 7 - Under Order 12 the court can on application and for good reason set aside or vary the judgment
or order of dismissal upon such terms as are just.
◦ If a suit has been dismissed or judgment entered under Order 12 by reason of the Party’s advocate’s
failure to attend the hearing and such advocate had notice of the hearing date the advocate is liable
to his client in professional negligence unless he is able to show good cause as to why he did not attend
in which case he will have good reason for applying under Rule 7 for the setting aside of the default
judgment or the order of dismissal of the suit.
 HEARING
◦ In Kingways Tyres and Automart Ltd v. Rafiki Enterprises Ltd 1995-998 1 EA 143 the Court of Appeal in
overturning the decision of the trial judge setting aside an ex-parte judgment under Order IXB Rule 8 held
as follows;
◦ “ A court exercises its discretionary jurisdiction under Order IXA as well as Order IXB, Rule 8 of the Civil
Procedure Rules to obviate injustice or hardship resulting from accident, inadvertence or excusable
mistake or error. An Appellate court will not lightly interfere with the exercise of discretionary jurisdiction
unless it is based on a wrong premise. Nor is it proper for an Appellate court to substitute its discretion for
that of the trial court” The Appellant had placed evidence by way of an affidavit of service on the court
record to rebut denial of service and the trial judge had misdirected himself in holding that the service
had not been made. Similarly, it was a clear misdirection for the learned judge who held that the
Appellant should have but had not, made a follow up to confirm service. The ex-parte judgment was a
regular judgment and could not be vacated on grounds of non- service of summons. The learned judge
had improperly exercised his discretion in setting aside the ex-parte judgment and therefore the appeal
would be allowed .”
◦ The Court also stated Per curia – “There are ample authorities to the effect that, notwithstanding the
regularity of it a court may set aside an ex-parte judgment if a Defendant shows that he has a
reasonable defence on the merits”.
 HEARING
◦ The brief facts were that the Respondent had applied for the default judgment to be
set aside on the ground of lack of service of summons to enter appearance. No
Defence had been annexed to its application to set aside and further there was an
Affidavit of Service showing that summons to enter appearance had been served
through registered post. The Respondent claimed never to have received the same.
The trial judge had granted the Respondent’s application to set aside the ex-parte
judgment and ordered that Defence be filed. The Appellant then appealed claiming
that the trial judge had misdirected himself and had improperly exercised his discretion
in view of the clear evidence on record that service of summons to enter appearance
and the Plaint had been duly effected.
◦ This case also illustrates that if judgment has been entered in default of appearance or
Defence, the application to set aside should as a matter of good practice be
accompanied with the proposed Defence.
 HEARING
◦ In Ochola V. National Bank of Kenya Ltd 2000 2 EA 475 it was held as follows;
◦ “Where a party has appointed counsel to appear for him and that counsel has due
instructions to proceed with the hearing of a suit, it should not be dismissed under Order IXB
Rule 4(1). However when an advocate’s request for an adjournment is refused and he has no
instructions to present his client’s case, there is no “appearance” even if his client is present in
person but is not ready to proceed. Though Order IXB deals with “attendance” there is no
distinction between the terms ”appearance” and “attendance”. They both connote
appearance in person or through advocate for conducting the case. Hence in this case,
since the advocate’s inability to proceed was caused by lack of instructions and not lack of
preparation, she cannot be said to have been present in court”.

◦ See also Fortune Finance Ltd V. Vacational Developers Ltd & 3 Others Milimani HCCC 1434
of 2000 which was an application to set aside an order for dismissal of suit for non
attendance. The judge dismissed the application on the basis that it was clear that the
applicant was not keen on prosecuting the case.
 RIGHT TO BEGIN- HEARING DE NOVO, EXAMINATION
DE BEN-ESSE AND RECALL OF WITNESSES.

◦ The Plaintiff, shall have the right to begin unless the court otherwise orders. An example is where
a Defendant or Respondent has admitted all the facts alleged and contends that either in point
of Law or based on some additional facts alleged by the Defendant or Respondent, the Plaintiff
is not entitled to any relief sought. In such case the Defendant or Respondent shall have the right
to begin. See Order 18 Rule 1.
◦ Under Rule 2 of Order 18 on the hearing date the party having the right to begin shall state their
case and produce evidence in support of the issues he is bound to prove. After the close of that
party’s case the other party shall then state their case and produce their evidence after which
he will make submissions to the court on the case generally. The party who began may then
reply upon which the hearing of the case comes to an end.
◦ If the party beginning produces his evidence and the other party states that he does not
propose to produce any evidence the party beginning will be given an opportunity to address
the court generally on the case after which the other party can reply and if in the reply the other
party cites any authorities the party beginning will have the right to make observations on the
authorities cited.
◦ Under Rule 2(4) the High Court may in its discretion limit the time allowed for addresses to the
court by the parties or their advocates. The imposition of time limits has led to complaints by
lawyers that they are not allowed to fully present their clients’ cases.
RIGHT TO BEGIN- HEARING DE NOVO, EXAMINATION DE
BEN-ESSE AND RECALL OF WITNESSES
◦ Evidence is produced through witnesses and the evidence of the witnesses in attendance is
to be taken orally in open court in the presence of and under the personal direction and
supervision of the judge. The evidence is taken down in writing by the judge and when it is
completed it is signed by the judge. See Rule 4 of Order 18
◦ Where a question put to the witness is objected to by a party or his advocate and the court
allows the question, the judge shall record the question, the answer, the objection and the
name of the person making the objection.
◦ Under Rule 7 of Order 18 the court may also record such remarks as it thinks fit with respect
to the demeanor of any witness while under examination.
◦ If after the taking of evidence the judge is unable to conclude a case e.g. due to death or
transfer to another place his/her successor may deal with the evidence taken as if the
evidence had been taken down before him/her and proceed with the suit from the stage
where the predecessor left it. In practice if there are still pending witnesses and only a few
have given evidence the courts will direct that the matter commence de novo.
RIGHT TO BEGIN- HEARING DE NOVO, EXAMINATION DE
BEN-ESSE AND RECALL OF WITNESSES

In the case of Azad Kara Vs. Mwangi Mutero Mombasa HCCC No. 222 of 1997, the counsel for the
Defendant had applied for the case to start de novo as the previous judge had only taken evidence of
one witness. He argued that her evidence was important and it was necessary for her to testify afresh
before the new judge in order for him to form an opinion of her demeanour. Counsel for the Plaintiff
opposed the application on the basis that the witness had already traveled to Saudi Arabia and it would
be very expensive to bring her back in addition to delaying the hearing. The judge upheld the application
of the Defendant’s counsel and directed that the suit be heard de novo on condition that the Defendant
pays the travel and accommodation expenses of the witness who had testified before the previous judge.
◦ If a witness is about to leave the jurisdiction of the court or other sufficient cause is shown to the court
why his evidence should be taken immediately, the court may upon application of any party or witness
take the evidence of such witness and the same will be evidence in the suit. This is what is referred to
examination de bene-esse. See Order 18 Rule 9.
◦ Under Rule 10 of Order 18 and S.146 of the Evidence Act, the court may at any stage of the suit recall
any witness who has been examined for further questioning as the court thinks fit.
RIGHT TO BEGIN- HEARING DE NOVO, EXAMINATION DE
BEN-ESSE AND RECALL OF WITNESSES
◦ An examination de bene- esse is simply a provisional examination of a witness is a pre-
trial process where a witness's testimony, deemed crucial and potentially at risk of
being unavailable later, is conducted outside the courtroom. This examination is
conducted with the understanding that the deposition may be used during the trial if
the witness is unable to attend in person or cannot be brought to court
◦ Under Rule 10 of Order 18 and S.146 of the Evidence Act, the court may at any stage of
the suit recall any witness who has been examined for further questioning as the court
thinks fit.
RIGHT TO BEGIN- HEARING DE NOVO, EXAMINATION DE
BEN-ESSE AND RECALL OF WITNESSES
◦ See the case of Hon. Sajjad Rashid Vs. Nation Newspapers Ltd Mombasa HCCC No. 463 of
1998 where the Defendant’s counsel had applied for the recalling of the Plaintiff for further
cross examination under Section 146 (4) of the evidence Act CAP 80 which provides:
◦ “ the court may in all cases permit a witness to be recalled either for further examination in
chief or further cross examination and if it does so parties have the right of further cross
examination and re- examination respectively”.
◦ The Defendant’s counsel’s application to recall the Plaintiff was on the grounds that when
the Plaintiff gave evidence on 25th October 2001 what became known as the Akiwumi
Report had not been released for use by members of the public and after release of the
report there had arisen need to cross-examine the Plaintiff on matters disclosed in the Report
which touched on the Plaintiff’s case. The court in allowing the application held that Order
XVII Rule 12 should be read together with Section 146 (4) of the Evidence Act and stated
further that the right of court to recall a witness is not limited as appears under Order XVII
Rule 12 but is wide as given under Section 146 (4) of the Evidence Act.
RIGHT TO BEGIN- HEARING DE NOVO, EXAMINATION DE
BEN-ESSE AND RECALL OF WITNESSES
◦ Rule 11- provides for the right of Courts to inspect property or things in issue in a suit.
◦ Under Order 17, in any suit which hearing of evidence has began the hearing of the suit is required to continue
from day to day until all the witnesses in attendance have been examined unless the court finds the adjournment of
the hearing beyond the next day to be necessary for reasons to be recorded. In practice hearing of suits does not
continue from day to day unless the matter had been fixed for hearing for two and more days consecutively.
◦ Under Order 17 Rule 2, if no steps have been taken by any party with respect to a suit for a period of one year,
the court may give notice in writing to the parties to show cause why the suit should not be dismissed and if no
good cause is shown will dismiss the suit.
◦ In the case of George Omondi Vs. Reilco Company Ltd and 3 Others Milimani HCCC No. 1612 of 1999,
the Defendants applied for dismissal of the Plaintiff’s suit for lack of prosecution under the then Order XVI Rule 5(C)
and (d) which provided that.
◦ “If within three months after the removal of the suit from the hearing list or after adjournment of the suit generally
the suit is not set down for hearing by the Plaintiff or the court of its own motion, the Defendant may either set
down the suit for hearing or apply for it to be dismissed’.
◦ The court declined the application because the reason why a hearing date could not be obtained was that the 1st
to 3rd Defendants had failed to pay court adjournment fees which they had been ordered to pay when the matter
was last in court and the three had applied for adjournment. In those circumstances the court felt that it would be
unjust to condemn the Plaintiff to a dismissal of his suit.
RIGHT TO BEGIN- HEARING DE NOVO, EXAMINATION DE
BEN-ESSE AND RECALL OF WITNESSES
◦ In Raiplywoods (K) Ltd Vs. Henry Tongola Otipa Eldoret HCC Appeal No 50 of 2003 an
application for reinstatement of an appeal which had been dismissed for want of
prosecution was refused on the ground that the Appellant was not serious in
prosecuting the appeal. The appeal had been filed on 5th May 2003 and counsel for
the respondent had successfully applied for its dismissal on 7th March 2006 on the
ground that that the Appellant no longer appeared interested in the appeal.
◦ Under Rule 4 of Order XVI if a party has been granted time to produce evidence or to
cause the attendance of his witnesses but fails to do so the court may notwithstanding
such default proceed with the hearing of the suit.
 JUDGMENT AND DECREE

◦ Judgments and decrees are dealt with under Order 21 of the Civil Procedure Rules and
Section 25 of the Civil Procedure Act. Section 81 (2) (f) also has bearing on summary
judgment.
◦ Under Rule 1 of Order 21 it is provided that in suits where a hearing is necessary the court
after the case has been heard shall pronounce judgment in open court either at once or
within 60 days from the conclusion of the trial after giving notice to the parties or their
advocates.
◦ Section 25 of the Act states that it shall not be necessary for the court to hear the case
before pronouncing judgment
◦ i. Where the Plaint is drawn claiming a liquidated demand and either;
◦ a) The Defendant has not entered appearance; or
◦ b) The Defendant after entering appearance has not filed his Defence within the
prescribed time; or
◦ ii. In such cases as maybe prescribed under Section 81 (2) (f).
 JUDGMENT AND DECREE
◦ Section 81 (2) (f) provides for summary procedure where the Plaintiff is either seeking to
recover a debt or liquidated demand in money payable by the Defendant or to
recover immovable property with or without a claim for rent or mesne profits where the
landlord is the Plaintiff and the Defendant is the tenant.
◦ “Judgment” may be defined as the decision obtained in an action either dismissing or
allowing the claim or appeal and making known the respective rights of the parties. In
Ranjinbhai vs. Rattan Singh 1953 20 EACA 71 and Saint vs. Hogan 1953 20 EACA 85 it
was held that reasons read in court after the decision had been given constituted part
of the judgment of the court and that reasons written after the decision but not read in
court could not constitute part of the judgment.
◦ See however the contrary position in FH Mohamedbhai & Company ltd Vs. Yusuf Abdul
Ghani 1952 19 EACA 38 and Kuna Arap Rono vs. Swaran Singh
 JUDGMENT AND DECREE
◦ Dhanjal 1966 EA 184 which held that the term “judgment” can never be properly extended to include
the reasons given by a court pursuant to the making of an order. This position is in keeping with Section
29 of the Indian Civil Procedure Code which defines judgment as; “a statement given by the judge of
the grounds of a decree or Order.”
◦ Order 21 Rule 4 of the Civil Procedure Act however provides that judgment in defended suits shall
contain a concise statement of the case, the points for determination, the decision thereon and reasons
for such decision. Therefore where the suit is defended, the correct position is as stated in the two cases,
Ranjinbhai vs. Rattan Singh 1953 20 EACA 71 and Saint vs. Hogan 1953 20 EACA 85. This is further
supported by Rule 5 of Order 21 which states that in a suit which issues have been framed the court shall
state its finding or decision with the reasons therefor upon each separate issue.
◦ Rule 3 of Order 21 requires that the judgment be dated and signed by the judge who pronounces it and
once it is signed the same cannot be altered or added to save as provided by Section 99 of the Act or
upon review. Section 99 of the Act allows correction of clerical or arithmetical mistakes or errors arising
from accidental slip or omission by the court of its own motion or upon application by either party.
◦ Under Rule 6, if any judgment affects title to registered land a certified copy of the Title must be
produced to the court before judgment is delivered.
 DECREE
◦ The decree which is a prerequisite to the enforcement of the judgment is extracted from the judgment
and under Rule 7, it must agree with the judgment. Under Section 2 of the Act decree means the
formal expression of an adjudication which so far as regards the court expressing it conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in the suit and
may either be preliminary or final. It includes the striking out of a Plaint and the determination of any
question under Section 34 or Section 91 but does not include any adjudication from which an appeal lies
as an appeal from an order or any order of dismissal for default.
◦ Section 34 deals with questions to be determined by the court executing the decree and Section 91
deals with applications for restitution where a decree has been varied or reversed.
◦ A decree only arises in a suit and therefore if an application to the court is not a suit it cannot result in a
decree but only in an order.
◦ Under Rule 8 of Order 21 the decree shall bear the date of the day on which the judgment was
delivered. Any party to a suit in the High Court can prepare a draft decree for approval of the other
parties who shall approve it with or without amendments or reject it without undue delay. If it is approved
the draft is submitted to the Registrar and if the Registrar is satisfied that it is drawn up in accordance with
the judgment he shall sign and seal the same.
 DECREE
◦ If there is no approval within 7 days, the draft is submitted to the Registrar who again if he is satisfied that it is
drawn in accordance with the judgment shall sign and seal it. Any of the parties may also file a draft decree
marked for settlement in which case the Registrar will list the same in chambers before the Judge who heard the
case or any other Judge if the Judge who heard the case is not available and shall give notice to the parties.
On the day listed for settlement the Judge will settle the terms of the decree.
◦ Under Rule 8(6) any order whether in the High Court or in a subordinate court which is required to be drawn up
shall be prepared and signed in like manner as the decree.
◦ Under Rule 9 of Order 21 if the amount of costs has been agreed between the parties or been fixed by the
Judge or been certified by the Registrar under paragraph 68A of the Advocates Remuneration Order or been
taxed by the court the amount of the costs may be stated in the decree or order.
◦ Where the costs have not been stated in the decree or order; after the amount of costs has been taxed or
otherwise ascertained the same shall be stated in a separate certificate to be signed by the Taxing Officer or in
a subordinate court by a magistrate. For purposes of Rule 9, “Taxing Officer means a Taxing Officer qualified
under paragraph 10 of the Advocates (Remuneration) Order that is to say:
◦ The Registrar or District or Deputy Registrar of the High Court , or, in the absence of a Registrar, such other
qualified officer as the Chief Justice may in writing appoint; except that in respect of bills under schedule IV the
Taxing Officer shall be the Registrar of Trade Marks or any Deputy or assistant Registrar of Trade Marks.
◦
 DECREE
◦ Rule 10 to 19 of Order 21 deal with different kinds of decrees and what should be
contained in them and Rule 20 provides that certified copies of judgment or decree
shall be supplied to the parties on application to the Registrar at the party’s expense.
◦ Under Section 26 of the Act which deals with interest; where the decree is for payment
of money the court may in the decree order interest at such rate as the court deems
reasonable from the date of filing the suit to the date of the decree in addition to any
interest awarded. See the case of Silas Obengele Vs. Kenya Ports Authority HCCC No.
654 of 1995 where the judge invoked this provision to award interest.
 DECREE
◦ See also the Court of Appeal decision in Highway Furniture Mart limited Vs. The Permanent Secretary &
Another 2006 2EA 94 where it was held as follows in dismissing the appellant’s appeal against the setting aside
of a decree by the Judge:

1. By order 4, Rule 6 of the Civil Procedure Rules, the Plaint should state specifically the relief which the Plaintiff
claims.

2. The justification for an award of interest on the principal sum is, generally speaking, to compensate a Plaintiff for
the deprivation of any money, or specific goods through the wrong act of a Defendant.

3. Interest antecedent to the suit is not claimable where under an agreement there is stipulation for the rate of
interest (contractual rate of interest) or where there is no stipulation but interest is allowed by mercantile usage
(which must be pleaded and proved) or where there is statutory right of interest or where an agreement to pay
interest can be implied from the course of dealing between parties.
4. A decree should agree with the judgment. A decree which is not in conformity with the judgment is liable to be
reversed and set aside for a party to the suit cannot suffer because of the errors committed by the Court.
THE END
MAY 2024