Nazmudin Habib Kassam Kurji v Frank Logistics Limited & 9 others [2021] KEELC 2226 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the ruling declining recusal was reviewable for error apparent on the face of the record
Review refused; the grounds raised were substantive disagreements amounting to an attempted appeal from the court's own decision
Order 45 permits review only for an error apparent on the face of the record, discovery of new matter, or any other sufficient reason. The 2nd Respondent's complaints went to the merits of the recusal ruling, which the JSC itself had indicated required review of substance, and he had filed a notice of appeal. The court held that the proper route was appeal, not review.
Whether the proceedings of 9/2/2021 should be expunged because the 2nd Respondent was allegedly present through a next friend
Application declined; the alleged representative was not a recognised agent and no sufficient reason for expungement was shown
Order 9 Rule 2 defines the recognised agents through whom parties may act. Ramadhan Juma, an employee, did not fall within those categories, so the 2nd Respondent was not present through him. The medical documents were dated 17/2/2021, days after the hearing, and did not show incapacity on 9/2/2021. Expungement would delay a suit heard since December 2017.
Whether the 2nd Respondent was denied a fair hearing on 20/2/2020 by being unrepresented and without original documents
No; he adopted his witness statement, produced documents filed by his advocates, and was cross-examined, with time given to procure the photographer
The court found the 2nd Respondent produced the documents his previous advocates had filed; when objection was taken to the photographs, the court allowed time to avail the photographer, but the 2nd Respondent instead filed a recusal application. The claim of denial of evidence was therefore untrue and did not warrant expungement.
Legal principles established
#- A party may not ask a court to review its own decision on the merits in lieu of appealing; dissatisfaction with a ruling is a matter for appeal
- Filing an application after a hearing date is fixed does not automatically procure an adjournment; the party must attend ready to proceed
- Only recognised agents under Order 9 Rule 2 of the Civil Procedure Rules may represent a party in court
Court orders
#- 1.The application dated 4/2/2021 is dismissed with no orders as to costs
- 2.The court declines to grant the orders sought in the application dated 19/2/2021
- 3.The Petitioner and the Attorney General are awarded the costs of the application dated 19/2/2021, to be borne by the 2nd Respondent
- Jurisdiction invoked
- Inherent and review powers under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nazmudin Habib Kassam Kurji v Frank Logistics Limited & 9 others [2021] KEELC 2226 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2226/eng@2021-06-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.