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JudgmentFARZANA CHARNIA VS ZAMMER NOORALI13 min read

FARZANA CHARNIA VS ZAMMER NOORALI

High Court at Milimani High Court · · Nyaundi Patricia Mande, SC


  1. This Appeal challenges ruling delivered in Milimani Children’s Case No. 78 of 2016. The Appellant is aggrieved by the decision of the Honourable E M Muiru (PM), and has preferred this Appeal. The impugned ruling was delivered on 19th April 2024 and the Court ordered inter alia;
  2. The defendant to have supervised telephone access once a week on a date and time to be agreed on by parties.
  3. The Memorandum of Appeal is dated 2nd May 2024  and lists the following as the grounds of Appeal: -
    1. The Learned Magistrate erred in law by entertaining and allowing the Respondent's application dated 8th January 2024 which was a clear/outright abuse of court process in view of similar and undistinguishable applications lodged by the Respondent.
    2. The Learned Magistrate fundamentally erred in law and fact in failing to reckon than the Respondent's application dated 8th January, 2024 was a direct replica of a previous application dated 28th April, 2022 that was dismissed on 23rd November, 2022 under similar circumstances. Notably, there were no special circumstances to warrant the court's departure from the previous decision.
    3. The Learned Magistrate essentially erred in law and fact in giving the Respondent a wide leeway to litigate perpetually over a closed issue without presenting any new evidence notwithstanding that the main suit had already been heard and determined vide a Judgment given on 19th July, 2016.
    4. It was a fundamental error of law on the part of the Learned Magistrate to grant far-reaching reliefs to the Respondent whereas he willfully failed to attend court during the hearing of the main suit and had neither applied for the setting aside of the Judgment nor bothered to explain his absence.
    5. The Learned Magistrate erred in law by failing to render a reasoned decision to back up her decision given on 19th April, 2024 so as to accord the Appellant who was aggrieved a chance to appreciate the basis whereof.
    6. The Learned Magistrate erred in law and fact in ignoring the ramifications of the impugned orders which have the effect of destabilizing the Subject/Minor.
    7. The Learned Magistrate erred in law and fact by granting the Respondent substantive orders of access/visitation post-Judgment when the court was already functus officio without justifiable cause.
    8. By ignoring the disentitling factors presented by the Appellant against the Respondent in her testimony during the main suit, the learned Magistrate waived the best interests of the Subject/Minor.
    9. The Learned Magistrate erred in law and fact in failing to seek the minor's views at the bare minimum and/or calling for a children officer's report prior to granting the impugned orders.
    10. Whereas parties have the "liberty to apply" in children matters, the learned Magistrate overstretched that principle by applying it in an oppressive manner that brings disrepute to the Honourable court.
    11. The Learned Magistrate erred in law and fact by failing to render a sound reasoning behind the orders issued.
    12. The Learned Magistrate erred in law and fact by failing to place due circumspection to the fact that the Respondent was a stranger to the Subject/Minor for all purposes and intents having abdicated all parental responsibilities for nearly a decade.
    13. The Learned Magistrate erred in law and fact by failing to consider the fact that the Respondent failed to explain why he never attended court during the hearing of the main suit and was approaching this Court too late in the day for access/visitation rights.
    14. The Learned Magistrate erred in law and fact by failing to consider the Appellant's preliminary objection which was merited and further ignoring her written submissions which raised weighty issues.
    15. The Learned Magistrate erred in law and fact in making outright prejudicial substantive conclusions, applying selective justice and disregarding the evidence tendered by the Appellant while on the other hand upholding the Respondent's application which was bereft of merit.
    16. Overall, the trial Magistrate was fundamentally in error by allowing the Respondent's application dated 8th January 2024 which was incompetent, ill-conceived, a non-starter and ultimately, inimical to the minor's best interests.
  4. Consequently, the Appellant seeks the following orders
  5. THAT the appeal be allowed.
  6. THAT the ruling delivered on 19th April, 2024 in Milimani Chief Magistrate’s CourtChildren’s Civil Case No. 78 of 2016 be set aside,  varied and/ or substituted with an order dismissing the Respondent's application dated 8th January 2024.
  7. Costs be awarded to the Applicant
  8. Pursuant to the Court’s directions that the appeal be canvassed via written submissions, both parties have filed their submissions. The Appellant has filed their submissions dated 15th October 2024 and those of the Respondent are dated 23rd September 2024.

SUMMARY OF THE APPELLANT’S SUBMISSIONS.

  1. The Appellant framed the following as the issues for determination;
  2. Duty of the Appellate Court?
  3. Whether the trial court was functus official ( sic) at the time of delivering its ruling on 19th April 2024?
  4. Whether the trial court erred in law and fact in granting the Respondent access/ visitation orders?
  5. Whether the appeal is merited?
  6. On the 1st issue, the Appellant relies on the decision on Selle & Another v Associated Boat Company and Another (1988) E. A. 123 as referenced in OGM v FG & Anor [2020] eKLR in urging that this Court is obligated to reevaluate the evidence and make its independent conclusions.
  7. On the 2nd issue, it is submitted that the court was functus officio upon delivery of judgment dated 19th July 2016 and that the ruling of 19th April 2024 was tantamount to the Court sitting on its own appeal. It is submitted that the only avenue available to the respondent was to appeal the judgment of the Court. The Appellant relies on the  decision in JNM v JGK [2014] eKLR that the only exception to the principle of functus officio in children’s matters is when a court is delaing with custody and maintenance.
  8. On the 3rd issue, it is submitted that it is not in the child’s interests to reintroduce the respondent into her life. It is submitted that there is a risk that the reintroduction might disrupt the child’s life. Further it is submitted that the court erred by not factoring the views of the child, who is old enough to have an opinion.
  9. On the final issue it is submitted that the appeal is merited and that the court erred in reopening the matter when it was functus officio in conclusion the Appellamt urges that a cardinal principle of our justice system is that their must be finality in litigation. It is urged that granting access to the respondent militates against the child’s best interests.

RESPONDENT’S SUBMISSIONS

  1. It is submitted that the Court in its judgment delivered on 19th January 2016 was silent on access by the respondent to the minor. The Application for access was necessitated by the fact that the Appellant has made it difficult for the respondent to have contact with the minor. The Respondnet identifies the following as the issues for determination
    1. Whether the Court erred in granting supervised telephone access to the respondent?
    2. Whether the application dated 16th January 2024 is Res Judicata?
    3. Whether the trial court was functus officio and lacked jurisdiction to determine the application dated 16th January 2024.
  2. On the 1st issue it is submitted that the Court issued interim orders of access that are in the best interests of the minor. He relies on the decision on LDT v PAO [2021] eKLR for the submission that the best interests of the child must always trump the rights and wishes of parents. He submits that he has honoured his parental obligations towards the minor.
  3. In response to the charge that he shoud be denied access as he has not been providing for the minor he refers to the decision in DG v ROO [2023] KEHC 24433[KLR], in which the Court stated that access to a child should not be pegged to provision.
  4. It is submitted that there is no obligation on the part of a Court to call for a children report before making orders on custody. He urges that as the biological father to the child he has a right to access and interact with the child.
  5. On the 2nd issue whether or not the application dated 16th January 2024 is res judicata. It is submitted that the current case does not fit within the margins of Section 7 of the Civil Procedure Act that elaborates on the doctrine of res judicata. He relies on the decision on ANM v PNM [2016] eKLR. The Applicant then seeks to distinguish between the Application dated 28th April 2022 and that dated 8th January 2024. It is submitted that in children’s matters there will always be the need to address ‘ upcoming issues with regard to the child to safeguard the child’s interest’.
  6. On the 3rd issue whether the Court was functus officio and therefore lacked jurisdiction to determine the application dated 16th January 2024. It is submitted that even after judgment a court will always retain the ‘duty and powers to handle other issues consequent, complimentary, supplementary, necessary and facilitative relating to the matter. See SK v SM ( Miscellaneous Cause 329 of 2022) [2023] eKLR.
  7. The respondent urges that the judgment delivered on 19th July 2016 was an ex-parte judgment and therefore cannot be said to have been determined on merits. The respondent relies on the following decisions to bolster his submission that children’s court does not become functus officio; PNK  Another v AWW [2024] eKLR; EKK  Anor ( Minors suing though their mother ANK- Next friend) v HKK [2020] eKLR; EAW v WAN [2021] eKLR.

ANALYSIS AND DETERMINATION

  1. Having considered the pleadings herein, submissions filed and the relevant law, I frame the following as the issues for determination
    1. Whether the Court erred in its ruling dated 19th April 2024, when it granted supervised telephone access to the Respondent?
  2. The Appellant challenges the impugned ruling on 2 fronts
    1. That the Application dated 8th January 2024 was res judicata as the Court had in its ruling dated 23rd November 2022 dismissed a similar application for review of the judgment delivered on 19th July 2016.
    2. Secondly it was submitted that the Court having delivered judgment herein it was functus officio.
    3. The Appellant urges further that on account of the past conduct of the respondent it is not in the child’s best interest if he has access to the minor.
  3. The substantive law on Res Judicata is found in Section 7 of the Civil Procedure Act Cap 21 which provides that:

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”

  1. As stated in the decision of Abok James Odera vs. John Patrick Machira Civil Application Nai. No. 49 of 2001, the principle applies to both suits and Applications.  The rationale of the doctrine of res judicata, was articulated in the decision of the Court of Appeal in Independent Electoral & Boundaries Commission –vs- Maina Kiai & 5 Others (2017) eKLR.

“The rule or doctrine of res judicata serves the salutary aim of bringing finality to litigation and affords parties closure and respite from the spectre of being vexed, haunted and hounded by issues and suits that have already been determined by a competent court. It is designed as a pragmatic and common-sensical protection against wastage of time and resources in an endless round of litigation at the behest of intrepid pleaders hoping, by a multiplicity of suits and fora, to obtain at last, outcomes favourable to themselves. Without it, there would be no end to litigation, and the judicial process would be rendered a noisome nuisance and brought to disrepute and calumny. The foundations of res judicata thus rest in the public interest for swift, sure and certain justice.”

  1.  In the Maina Kiai case (supra), the Court cited with approval the Indian Supreme Court in the case of Lal Chand vs. Radha Kishan, AIR 1977 SC 789 where it was stated;

“The principle of res judicata is conceived in the larger public interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded in equity, justice and good conscience which require that a party which has once succeeded on an issue should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue. The practical effect of the res judicata doctrine is that it is a complete estoppel against any suit that runs afoul of it, and there is no way of going around it – not even by consent of the parties – because it is the court itself that is debarred by a jurisdictional injunct, from entertaining such suit.”

  1. As explained above, the principle of Res Judicata ensures that a cardinal principle of our justice system that requires that there must be finality in litigation is upheld. The issue though is whether the principle of Res Judicata applies in Children Matters. I do not think that the principle can be applied as a hard and fast rule in children’s matters for the practical reason that the circumstances of a child are always evolving and likewise the Court must in appropriate cases of necessity be able to review and vary its orders so as to meet the changed circumstances of the minor. Once a party demonstrates that there are changed circumstances they remove themselves from within the ambit of res judicata. I am persuaded by the reasoning of Hon Lady Justice Muigai who expressed hereself as follows in ANM v PMN ( Civil Case 14 of 2015) [2016] KEHC 1770 (KLR) ( Family)(5 September 2016) Ruling-

[24] The application is not res judicata because;

a)Matters relating to children are determined on the basis of the best interests of the child which are paramount as espoused in article 53(3) of the Constitution 2010

b)Res judicata is not applicable to children matters as it is not expressly provided for in Children's Act 2001. Practically, it behoves, parents, family community and society to support the child in growth and development up to the stage the child or young adult has ability to fend for himself/herself. Therefore, naturally there will be upcoming issues with regard to the child to safeguard the child's interest…..

  1. By parity of reasoning, I am persuaded that a Children’s Court is never functus officio as it must always be at hand to address the changing circumstances of a minor, the Court is obligated to always act in the best interests of the child. This must include the duty of the Court to ensure stability and protection of a child from the toxic relationship between the parents. It follows therefore that the issue here is whether the respondent demonstrated that the circumstances of the minor had changed to warrant a review of the earlier court orders that did not provide for access.
  2. The circumstance in the instant case are that in the judgement of 19th July 2016, the Court did not make a determination on access by the father to the minor. An attempt to review this judgment vide the application dated 28th April 2022 failed with the Court finding that the application was presented after an unexplained inordinate delay and that it was also presented under the wrong provisions of the law.
  3. The latter application, dated 8th January 2024 that is the subject of this appeal, cites Section 154 of the Children Act along with other provisions of the law. It is stated to be presented in the best interests of the child. It is true that the orders that were sought by the Applicant 28th April 2022 are identical to those sought in the application dated 8th January 2024, both as framed and in effect. 
  4. In order to bring themselves within the broad powers of the Court and to enable the Court override the principles of res judictata, the applying party has to demonstrate the ‘changed’ circumstances of the minor that warrant the review or variance of the orders. In this matter I note that the Court in the ruling  delivered on 23rd November 2022, considered in detail whether the Applicant had laid a basis for the court to find that there was a change in circumstances to warrant review of its earlier orders. It did not find so.
  5. In the subsequent application of 8th January 2024, the Applicant does not move an inch from where he was standing when he presented the Application dated 28th April 2022. He is simply stating that as a father he is entitled to access. As with the earlier application, the respondent cites the wrong provisions of the law. The best interests of the Child cannot override the clear staturory provisions.
  6. I find therefore, that in the circumstances of the current case the Application dated 8th January 2024 was indeed res judicata and is therefore incompetent and incurably defective.
  7. Notwithstanding that a children’s court is never functus officio a party is required to demonstrate to the Court what has changed to necessitate the Court revisiting the earlier orders and altering them to align to the changed circumstances. In this instance no such effort was made and therefore the Court was functus officio.
  8. It is also in the child’s best interest that litigation touching them must come to a close.
  9. I will go further to say that given the circumstances of this case, it is in the child’s best interests in the event that the orders are to be reviewed, to have her opinion on the matter and it is a good practice to balance the opinion of the child with the objective recommendation of an expert such as  a children officer.
  10. Having said the above, I will allow the appeal on the ground that the application dated 8th January 2024 was res judicata and therefore incompetent and an abuse of the process of the Court. Further that THE Court was functus officio. Accordingly the orders of the Court issued on 19th April 2024 are set aside and substituted with orders dismissing the application.
  11. The matter is referred back to the trial court for hearing of the main suit
  12. This being a family matter each party shall bear their own costs.


SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…7th day of March 2025


    FARZANA CHARNIA VS ZAMMER NOORALI FARZANA CHARNIA VS ZAMMER NOORALI