ZAHIR AHMEDALI LALJI NURANI VS Rahat Zahir Lalji Nurani

1. Vide Memorandum of Appeal dated 14^th August 2023, the Appellant herein appeals against the ruling of Hon. M. W. Kibe Senior Resident Magistrate delivered in MCCHCC No. E1166 of 2011 on 7^th August 2023 on the following grounds, THAT
   1. The learned Magistrate erred in law and in fact by failing to consider the new and important evidence provided by the Appellant for the purposes of the review of the judgment dated 2^nd December 2022.
   2. The learned Magistrate erred in law and in fact in failing to appreciate that the Respondent had engaged in abuse of legal process and prevented the Applicant from securing the any gainful employment as shown by the new and compelling evidence provided by the Appellant
   3. The learned Magistrate erred in law and in fact be holding that the Appellant’s motion for review would disadvantage the subject minors who have a right to education.
   4. The learned Magistrate erred in law by holding that the Appellant’s counsel ought to have filed a formal application for leave to come on record.
2. The Appellant therefore prays that the Appeal be allowed and the ruling of the Chief Magistrate’s Court dated 7^th August 2023 be set aside and the judgment dated 2^nd December 2022 be reviewed accordingly.
3. Pursuant to the directions of the Court, that the Appeal will be canvassed by written submission, both parties have filed their  respective submissions.

SUMMARY OF THE APPELLANTS SUBMISSIONS

1. The Appellant identifies two issues for determination
   1. Whether the motion for review was properly considered by the trial Court
   2. Whether Order 9 rule 9 of the Civil Procedure Rules, 2010 was applicable
2. On the 1^st issue it is submitted that notwithstanding that the Appellant had presented evidence in support of the motion for review, the trial court did not even consider the grounds or evidence put forth. The Appellant faults the trial magistrate failing to show any reasoning or analysis and contends that it was not sufficient for the court to state, as it did, that

‘..allowing the Defendant’s application would disadvantage the minors who have a right to education. The said application does not meet the legal threshold for review.’

1. Reliance is placed on Order 21 Rule 4 of the Civil procedure Rules, 2010 and the requirement that all judgments in defended suits to contain ‘a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision’. It is submitted that a decision may be correct but if there is no reasoning as to why the court has ruled as such, the decision is improper.
2. It is submitted that the facts in the current case meet the criteria for review as set out in the case of National Bank of Kenya Ltd v Ndingu Njau [ 1997] eKLR and that the Applicant was therefore deserving of the orders sought. The Appellant urges that this Court review the judgment of 2^nd December 2022 and the responsibility for the subject minors’ education be adjusted according to the respective abilities of the Appellant and the Respondent. In any event it is stated that the Respondent is responsible for the Appellant’s inability to secure employment.
3. On the 2^nd issue, it is argued that Order 9 rule 9 does not apply to proceedings presented under the Children’s Act as the parts of the Civil Procedure Rules that apply to proceedings involving children are set out in paragraph 5 of the General rules and regulations, 2002 ( Legal Notice 77 OF 2002 and Legal Notice 266 of 2017) and the list is exhaustive.
4. The Applicant concludes by stating that the provisions of Article 50 of the Constitution would necessarily override Order 9 of the Civil Procedure rules if the effect of the same is to inhibit the Appellant’s right to have a counsel of their choice.

SUMMARY OF RESPONDENTS SUBMISSIONS

1. On the merit of the Appeal the Respondent submits that the trial court was right on the law in dismissing the application as it did not meet the threshold set out in section 80 of the Civil Procedure Act, 2010 and Order 45 of the Civil Procedure rules. The Respondent cites the decision in MK v HAK [2021] eKLR, in support of the submission that the Application for review is not an appeal and that therefore the application was for dismissal.
2. In any event it is stated that the criminal case against the Appellant allegedly initiated at the instigation of the Respondent cannot be said to be new evidence. It is further stated that the unemployment of the Appellant does not provide sufficient basis to review the judgment as he has been unemployed from the time the matter was initiated in court.
3. The Respondent submits that the Court should be guided by the ‘best interests of the child’ principle as articulated under Article 53 (1)(b) of the Constitution. It is further submitted that the Appellant has not complied with the Orders of the Court and he is therefore undeserving of the Court’s indulgence and refers to the observation of Leary J in Canadian Metal Company Ltd v Canadian Broadcasting Corporation [ 1975]48 DLR at 641 and 669.
4. The Respondent further relies on the decision in MAA V ABS [2018] eKLR where it was emphasized that the court has a duty to give primacy to the interests of the child and not those of the parents.
5. On the propriety of the representation it is contended that the Appellants counsel having failed to comply with Order 9 rule 9 of the civil procedure rules the application was incompetent and should have been be struck out. Reference is made to the decision in James Ndonyu Njogu v Muriuku Macharia [2020] eKLR in which the Court proceeded to strike out pleadings of counsel who was found not to have complied with Order 9 rule 9 of the civil procedure rules.

ANALYSIS AND DETERMINATION

1. Having considered the pleadings filed herein, submissions filed, authorities cited and relevant law I consider the following to be the issues for determination
   1. Whether the trial court erred in dismissing the Appellants’ Notice of Motion for review of judgment delivered on 2^nd December 2022
   2. Who should pay costs of the suit
2. This being a first appeal, the Court is obligated to review the evidence adduced before the trial court and satisfy itself that the decision was well- founded. This duty is well laid out in the celebrated decision of Selle & Anor v Associated Motor Boat Co. Ltd & Others [ 1968] EA 123.
3. The Appeal emanates from the ruling of the trial court in its decision of 7^th August 2023 in which the Court dismissed the Appellants Notice of Motion dated 10^th May 2023. In the Notice of Motion, the Applicant sought that the judgment of 2^nd December 2022, be reviewed and ‘(a) the Plaintiff/ Respondent cater for the subject minors’ school fees and school related expenses and their medical expenses; (b) in the alternative, this Honourable Court to issue any other reliefs it may deem fit.
4. It was the Appellant’s case that the Judgment be reviewed and the Respondent bear these expenses as she was instrumental in his inability to secure a job as she had maliciously instigated a criminal case against him. That he had challenged the criminal case and the Respondent had withdrawn the same. The Respondent contended that this fact was not brought to the attention of the Court by the previous counsel as if the court had known of this it would arrived at a different conclusion. It was argued that the Appellant should not bear the brunt of the counsel’s mistake.
5. The Respondent opposed the Application and filed Notice of Preliminary Objection dated 24^th May 2023, the Notice of Motion was canvassed via written submissions.
6. In a terse ruling the Court stated, that it has ‘…considered the Application filed, preliminary objection, affidavits filed and written submissions filed’. The Court framed the main issue of determination as whether ‘this court should review the judgment dated 2^nd December 2022’.  The Court proceeded to state that in the Application for review the ‘biological father of the subject minors prays in his application that the plaintiff/ Respondent be ordered to cater for the minors’ school fees and school related expenses’. The Court then referred to its judgment of 2^nd December 2022 in which the Appellant was ordered to cater for the minors school fees and school related expenses.
7. The Court found that, ‘Allowing the Defendant’s application would disadvantage the minors who have a right to education. The said application does not also meet the legal threshold for review.’
8. On the representation, the Court stated, ‘since there is a judgment, the Defendant’s advocate ought to have filed a formal application for leave to come on record or  a consent from previous law firm’.
9. The Court then proceeded to disallow the application having found that it did not have merit.
10. I discern that the Appellants principal argument is that the ruling is compromised by its brevity as the Magistrate failed to demonstrate that she had considered the case by the Appellant and also failed to give reasons for her ruling.

24. It is not in dispute that judicial decisions must have as their foundation logical  reasoning. The reasons for this were well articulated in the Australian decision in Soulemezis v Dudley Holdings: (1987) 10 NSWLR 247 at 279   where McHugh JA (as then was) stated

The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice”: “The Writing of Judgments” (1948) 26 Can Bar Rev at 491. Thus, the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (“In Defence of Judicial Candor” (1987) 100 Harv L Rev 731 at 737):

“A requirement that judges give reasons for their decisions — grounds of decision that can be debated, attacked, and defended — serves a vital function in constraining the judiciary's exercise of power.”

Thirdly, under the common law system of adjudication, courts not only resolve disputes — they formulate rules for application in future cases: Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1 at 3–4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.

1. The issue in the instant case is whether the trial court gave a reasoned decision. I do not think that in arriving at a determination, the primary consideration is the length of the ruling but rather whether the court correctly framed the decision for determination and whether it arrived at the correct decision and whether that decision and the basis for the decision is clear.
2. I find that the trial court correctly framed the issue for the decision, in finding that the Appellant sought a review of the judgment of 2^nd December 2022. The trial court is clear that it dismissed the Notice of motion on two grounds, the first that it did not meet the threshold for review and secondly allowing the application would disadvantage the minor.
3. This being an Application for review the relevant law was Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. The grounds upon which a Court will review its judgment are clearly spelt out under order 45 and the party seeking review has to show that;
   1. There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made,
   2. There is mistake or error apparent on the face of the record,
   3. or any other sufficient reason, that will entitle the party to a review of the decree
   4. The party has to make the application for review without unreasonable delay
4. In the instant case, the Appellant sought that the Court review its judgment on the basis that the Respondent had instigated a criminal case against him that hampered his attempts at securing employment. It was his case that his Counsel on record at the time of the hearing failed to present this fact before court. It was the mistake of counsel and he should not bear the brunt for a mistake of his Counsel. The Appellant concedes that at the time of the trial the matter was pending in court he was aware of the criminal matter, this therefore is a case of strategy that backfired on the part of his previous counsel rather than discovery of new and important evidence.
5. I am therefore not persuaded that this ground musters the threshold set out in Order 45 and although the trail Magistrate did not state so in as many words, that limb of the Application for review was destined to fail and fails.
6. Further it is a requirement that the Application be presented without unreasonable delay, in this instance, the judgment was delivered on 2^nd December 2022, the Application was presented on 10^th May 2023. This is 5 months later; no reasons were given for the 5-month delay in presenting the Application. It is evident that the Application was triggered by the Respondent’s letter to the Appellant requiring that the respondent comply with the judgment.
7. I find that the magistrate correctly found that allowing the application would prejudice the children, whose interests are paramount as required by Article 53 of the Constitution. I therefore find that whereas the Magistrate may be faulted for brevity, the Court arrived at the right decision based on the facts of this case. It is the parents of the Children that bear the responsibility of providing for their children. In this Application for review the Appellant seeks to be excused from providing for his children. The Court cannot be an instrument to deny a child their right to parental care and provision.
8. I will not expend much time on the Appeal based on Order 9 Rule 9 as it is clear that whereas the Court was of the view that Counsel for the Appellant was not properly on record, the Court proceeded to consider the Application on merit. This would have been a salient issue if the Court had for instance proceeded to strike out the Application.
9. Based on the foregoing I find that the Appeal will fail in its entirety and dismiss it in its entirety with costs to the Respondent.

SIGNED, DATED and DELIVERED VIRTUALLY at NAIROBI this…17th    day of…May 2024

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