[2020] KEHC 2566 (KLR)
The court found it impossible to make a ruling on the defendant's application in the absence of the original court file, especially given the age of the case and the likelihood of prior orders or proceedings affecting the outcome. The judge, being transferred from the division, determined that the just course was to...
Source-derived case information.
- Citation
- [2020] KEHC 2566 (KLR)
- Parties
- Plaintiff: Anna Marie Cassiede; Plaintiff: Bruno Cassiede; Defendant: Peter Kimani Kairu t/a Kimani Kairu & Co. Advocates
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 39 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Proceedings and Rehear Notice of Motion
- Outcome
- Application not determined on merits; proceedings set aside and application to be heard de novo before incoming judge.
- Judges
- MM Kasango
- Legal Topics
- Setting Aside Orders, Rehearing Applications, Court File Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anna Marie Cassiede
Plaintiff
Bruno Cassiede
Plaintiff
Peter Kimani Kairu t/a Kimani Kairu & Co. Advocates
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Proceedings and Rehear Notice of Motion
Legal Issues
- 1 Whether the court can render a ruling on an application in the absence of the original court file.
- 2 What is the appropriate order where the court file is missing and the presiding judge is being transferred.
Ratio Decidendi
The court found it impossible to make a ruling on the defendant's application in the absence of the original court file, especially given the age of the case and the likelihood of prior orders or proceedings affecting the outcome. The judge, being transferred from the division, determined that the just course was to set aside the proceedings of 30th July 2020 and direct that the Notice of Motion dated 18th March 2020 be heard afresh before the incoming judge, once the original file is traced and placed before the court. The Deputy Registrar is tasked with tracing the file and confirming its availability before the matter proceeds.
Court Disposition
Application not determined on merits; proceedings set aside and application to be heard de novo before incoming judge.
Orders
- The proceedings of 30th July 2020 are set aside.
- The Notice of Motion dated 18th March 2020 shall be heard de novo before the incoming judge.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 39 OF 2007
ANNA MARIE CASSIEDE
BRUNO CASSIEDE.....PLAINTIFFS/RESPONDENTS
- VERSUS -
PETER KIMANI KAIRU T/A KIMANI KAIRU & CO.
ADVOCATES…..................DEFENDANT/APPLICANT
RULING
1. The defendant filed a Notice of Motion dated 18th March 2020. That application was filed when the courts had closed down due to the COVID-19 pandemic. It follows that the application which was filed through email, the then procedure, was presented before me without the court file of this matter. That application was argued before me on 30th July 2020 and a Ruling date was given for today.
2. On my consideration of this matter I found it impossible to make a Ruling on the application in the absence of the court file. As it will be noted this case was filed in the year 2007. It follows there is possibly many orders or proceedings which may impact my Ruling of the application.
3. It is impossible for me to render a Ruling to the application without the original file which to date has not been traced in the court registry. In view of the fact the Hon. the Chief Justice has transferred me from this court as at 1st November 2020 I find the just order to make is for the deputy registrar of this court to trace the original file of this matter and place the same before the incoming judge of this Division.
4. The order I make is that:
a. The proceedings of 30th July 2020 are hereby set aside and the Notice of Motion dated 18th March 2020 shall be heard de novo before the incoming judge.
b. At the reading of this Ruling parties will be given a date to appear before the Deputy Registrar for the Deputy Registrar to confirm availability of the original file.
Orders accordingly.
DATED, SIGNED and DELIVERED at NAIROBI this13thday of OCTOBER2020.
MARY KASANGO
JUDGE
Before Justice Mary Kasango
C/A Sophie
For the Plaintiff:
For the Defendants:
ORDER
This decision is hereby virtually delivered this 13thday of October, 2020.
MARY KASANGO
JUDGE