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ELCDismissedNot stated in the judgment· [2021] KEELC 2226 (KLR)

Nazmudin Habib Kassam Kurji v Frank Logistics Limited & 9 others [2021] KEELC 2226 (KLR)

Environment and Land Court
3 June 2021
4,532 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 2nd Respondent in a petition before the Environment and Land Court, Nairobi, brought two applications. The first, dated 4/2/2021, sought review or setting aside of the court's ruling of 30/9/2020 declining to recuse itself, together with expungement of the proceedings of 20/2/2020 and leave to present his evidence afresh, contending there was an error apparent on the face of the record: his advocate had an emergency, he lacked his original documents, and the JSC had recommended he pursue review. The second, dated 19/2/2021, sought expungement of the proceedings of 9/2/2021, arguing he was present through a next friend and that the court disregarded his pending review application when it directed the close of witnesses and filing of submissions. The Petitioner opposed both, arguing no reviewable error had been shown, that the applicant could not pursue review having filed a notice of appeal, that the applications re-litigated matters already determined in the recusal application, and that expungement would delay a suit heard since December 2017 and give the 2nd Respondent an unfair opportunity to amend his cross-examination answers. The court dismissed both applications. It held there was no error apparent on the face of the record or other sufficient reason under Order 45, and that the applicant was improperly asking the court to sit on appeal over its own decision; Ramadhan Juma was not a recognised agent under Order 9 Rule 2; the medical documents postdated the hearing; and the applicant had repeatedly failed to cross-examine witnesses or refund witness expenses. The review application was dismissed with no orders as to costs, and costs of the expungement application were awarded to the Petitioner and the Attorney General, borne by the 2nd Respondent.

Key legal issues

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01

Whether the ruling declining recusal was reviewable for error apparent on the face of the record

Holding

Review refused; the grounds raised were substantive disagreements amounting to an attempted appeal from the court's own decision

Reasoning

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.

p. 4
02

Whether the proceedings of 9/2/2021 should be expunged because the 2nd Respondent was allegedly present through a next friend

Holding

Application declined; the alleged representative was not a recognised agent and no sufficient reason for expungement was shown

Reasoning

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.

p. 4
03

Whether the 2nd Respondent was denied a fair hearing on 20/2/2020 by being unrepresented and without original documents

Holding

No; he adopted his witness statement, produced documents filed by his advocates, and was cross-examined, with time given to procure the photographer

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 4/2/2021 is dismissed with no orders as to costs
  2. 2.The court declines to grant the orders sought in the application dated 19/2/2021
  3. 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

Authorities

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Legislation

  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 9 Rule 2

Cases cited (6)

  • National Bank of Kenya Limited v Ndungu Njau
    [1997] eKLR
  • George Ochieng Olima v Republic
    [2019] eKLR
  • Musharaf Abdalla v Republic
    [2017] eKLR
  • Auto Selection (K) Limited & 2 others v John Namasaka Famba
    [2016] eKLR
  • In Re Estate of Simoto Omwenje Isaka (Deceased)
    [2020] eKLR
  • Otieno, Ragot & Company Advocates v National Bank of Kenya Limited
    [2020] eKLR
Jurisdiction invoked
Inherent and review powers under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules

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, "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.