ask the lawyer: The law on securitiesThe sources of the law on s...

THE LAW ON FAIR HEARING IN CIVIL CASES IN KENYA

BY DANIEL CHEGE LLB(HONS)

Article 50 of the constitution of Kenya provides for that every person is entiled to a Fair hearing,which  is an ingreadient to Natural justice.The principles of natural justice have been developed and followed by the judiciary to protect the right of the public against the arbitrariness of the administrative authorities. Natural Justice implies fairness, reasonableness, equity and equality. In Roman law the concept of natural justice consists of two essential rules:

1.      audi alteram partem,- the person, who has to be effected by a decision has a right to be heard; and

2.      nemo judex in re sua – the authority deciding the matter should be free from bias.

In the case of Ridge v. Baldwin⁸ , the applicability of natural justice to the quasi-judicial bodies took place. Ridge v. Baldwin is regarded as the Magna Carta of natural justice. The judgment of LORD REID widened the ambit of natural justice.Whenever this requirements are violated, the aggrieved party can apply for judicial review.

THE  KENYAN  POSITION

Fair hearing as an ingredient of Natural Justice is Provided for Under Article 50 of the constitution and Whenever Natural justice is denied, the aggrieved party can apply for judicial review provided under ORDER 53 of civil procedure rules 2010.Fair Hearing is operationalized by various laws, most importantly  the civil procedure rules 2010 under the following provisions;   

RULE OF FAIR HEARING.

The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that no one should be condemned unheard. It is the first principle of the civilised jurisprudence that a person facing the charges must be given an opportunity to be heard, before any decision is taken against him. Hearing means ‘fair hearing’.The norms of reasonableness of opportunity of hearing vary from body to body and even case to case relating to the same body. In Cooper v. Wandsworth Board of Works¹⁷ , BYLES J. observed that the laws of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence upon Adam before he was called upon to make his defence.

COMPONENTS OF RIGHT TO FAIR HEARING.

·         Right to notice

·         Right to know the evidence against him

·         Right to present case and evidence

·         Right to counsel.

1.      Right to notice. The term ‘Notice’ originated from the Latin word ‘Notitia’ which means ‘being known’. Thus it connotes the sense of information, intelligence or knowledge. Notice embodies the rule of fairness and must precede an adverse order. It should be clear enough to give the party enough information of the case he has to meet. There should be adequate time for the party, so that he can prepare for his defence. It is the sine qua non of the right of hearing. If the notice is a statutory requirement, then it must be given in a manner provided by law. Thus notice is the starting point in the hearing. Unless a person knows about the subjects and issues involved in the case, he cannot be in the position to defend himself.

The notice must be adequate also. Its adequacy depends upon the case. But generally, a notice, in order to be adequate must contain following elements:

·         Time, place and nature of hearing.

·         Legal authority under which hearing is to be held.

·         Statements of specific charges which the person has to meet.

This component is operationalized in Kenya by the following provisions of the civil procedure rules 2010

ü       ORDER 1 rule 15 provides for notice to third parties( third party proceedings)

ü       ORDER 3 rule 2(d) formal requirements  which presupposes notice that is a Demand letter.

ü       ORDER6  provides for appearance of parties

ü       ORDER 22rule 57 provides for the notification n of sale

ü       ORDER 53 provides for the application for Judicial  review

2.Right to know the evidence against him. Every person before an administrative authority, exercising adjudicatory powers has right to know the evidence to be used against him.. A person may be allowed to inspect the file and take notes. This component is operationalized  by

ü       ORDER 11 and1 of the civil procedure rules2010,Which provides for pre-trial conferences. 

3 Right to present case and evidence. The adjudicatory authority must provide the party a reasonable opportunity to present his case. This can be done either orally or in written. The requirement of natural justice is not met if the party is not given the opportunity to represent in view of the proposed action.

This component is operationalized  by

ü       ORDER 18 provides for hearing of suit and examination of witnesses.

3 Right to counsel. For sometime the thinking had been that the lawyers should be kept away from the administrative adjudication, as it saves time and expense. But the right to be heard would be of little avail if the counsel were not allowed to appear, as everyone is not articulate enough to present his case. In India few statutes like the Industrial Disputes Act, 1947, specifically bar the legal practitioners from appearing before the administrative bodies.

This component is operationalized  by

ü       ORDER 9 and1 for representation by an advocate or in person.

CONCLUSION

The rule of fair hearing must be followed to prevent  miscarriage of justice. If an accused is punished unheard, the purpose of law is defeated. The adjudicatory authority does not know whether the accused is innocent or not. What if the accused is punished unheard and later he turns out to be an innocent?