[2017] KEHC 7399 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

MISCELLANEOUS APPLICATION NO. 221 OF 2010

DANIEL KARANJA MITITU.........................................................APPLICANT

VERSUS

WILSON MUGWE WERU........................................................RESPONDENT

RULING AND DIRECTIONS

1. By my ruling dated 28th May 2015, the parties in this application were directed to hold a conference with the Deputy Registrar of this court to find a way of resolving the matter of the missing original court file and documents in respect of Nakuru High Court Civil Case No. 188 of 1974. An order for reconstruction of a skeleton court file was issued but both parties presented different sets of pleadings and judgment, and could not agree on the documentation, save for the plaint.

2. On the 30th January 2017 the parties Advocates appeared before me and confirmed that the original court file could not be traced.

By an application dated 23rd September 2016 the applicant and Defendant in the 1974 suit sought orders that:

(1)Spent

(2)The conservatory orders issued on the 16th April 2010 and all consequential orders be set aside.

(3)The Notice of Motion dated 14th April 2010 be struck out and/or be dismissed with costs to the Respondent as the prayers sought cannot be granted.

(4)It be deemed that Nakuru High Court Civil Case No. 188 of 1974 cannot be reconstructed as the original file records and registers cannot be traced.

(5)The court be pleased to grant any other or further orders as it may deem fit and just to grant.

3. This suit was heard before the creation of the Environment and Land Court under the 2010 Kenya Constitution and Judgment delivered on the 30th January 1975 although the respondent maintains that the same was eventually set aside.

I have had occasion to peruse and compare the “plaint and judgments” in HCCC No. 188 of 1974as produced by both advocates in court.

I confirm that the “Judgments” allegedly delivered by the same Judge on the same date in respect of the same case – are different.

The copy of Judgment in the possession of the plaintiff shows that the plaintiffs suit was allowed as against the defendant. The copy of judgment held by the defendant's advocate shows that the plaintiff's suit was dismissed with costs for want of prosecution.

It is evident that the court records were tampered with and altered before the disappearance of the court file, and all registers in respect thereof.

4. In the application dated 23rd September 2016, the defendant says that a similar case Nakuru HCCC No. 16 of 2009 was filed by the plaintiff where similar orders were sought as in the missing court file but which suit was struck out as Res Judicata. A copy of the plaint and ruling were annexed as exhibits.

5. The defendant in his supporting affidavit says that thereafter, he sold the suit properties L.R No. Nyandarua/Kanyagia/596 and 597 to M/S Smart shop Limitedand there is a pending suit being Nakuru HCCC No. 179 of 2011 (O.S)where the plaintiff seeks eviction of the respondents. The respondent has filed a counterclaim that the suit properties belong to him having bought the same from the plaintiff hereof.

To that, the applicant states that the conservatory orders issued by the court on the 14th April 2010 are an impediment to the hearing and determination of the said HCCC No. 179. 2011 (O.S.), and that theex-parte orders issued (conservatory orders) being over 6 years old ought to be discharged to enable the defendant transact on the suit properties.

6. The Respondent on the Notice of Motion dated 23rd September 2016 has not filed any replying affidavit or grounds objection to the application. However, his advocate Mr. Ndegwa Wahome attended court on the 30th January 2017 when the application was scheduled for hearing interparties. Before the application he sought directions from the court on grounds that as the original court file has gone missing, the plaintiff's application could be heard and sought its dismissal. He further urged this court to refer the case to The Honourable The Chief Justice for directions on the matter of reconstruction of the court file.

In his submissions, he sought that the The Honourable The Chief Justice be summoned, together with Mr. Kamere Advocate, to testify on what Judgment the court issued, rationalising that both Honourable. D. Maraga and Mr. Kamere Advocate could remember the contents of the Judgment in the said HCCC No. 888 of 1974delivered in 1975 – as they represented the plaintiff and the defendant respectively.

7. The Respondents Advocate Mr. Waichugo was of the opposite opinion, that the court file be reconstructed by having all the copies of documents in possession of each parties Advocates be certified and be produced by consent. He saw no rational to refer the matter to the Hon. The Chief Justice for any directions. At the end, the Notice of Motion dated 23rd September 2016 was not argued. The orders sought therein will therefore remain in obeyance, and the conservatory orders shall remain in force.

8. I have considered the ruling of Hon. Koome J in HCCC No. 16 of 2009. The Judge considered the pleadings in the case and in the missing court file.

It was her finding that the suit was Res judicata.

Several court orders were referred to in the ruling. These orders in my view are important as they may give direction to this court on the way forward and even form part of the court record should the court file be reconstructed. That also goes for another suit filed as HCCC No. 179 of 2011 (O.S.) where the same issues arose and the defendant sold the suit properties to a 3rd party, the plaintiff in the suit. Several documents were referred to by the Defendant, represented by Ndegwa Wahome & Co. Advocates who represented the defendant in the HCCC No.188 of 1974.

No doubt Mr. Ndegwa Wahome Advocate has in his (or his firms) possession the necessary documents to be used in the reconstruction of a skeleton court file. This particular case is pending hearing in this court and so all the documents are available, in his or his firms possession.

9. I do not understand why Advocate Ndegwa Wahome is so opposed to getting copies of all the available documents from related files certified by the court and to form the court record of the missing court file.

His argument that parties may “manufacture” documents is baseless. He has many documents in respect of the case HCCC No.179 of 2011(O.S)and also HCCC No. 16 of 2009 cases that as I have stated were filed and similar to the suit with the missing file.

10. Having considered all arguments by counsel, this court directs that the parties do extract all the documents that my be in their possession, including those produced in Nakuru HCCC No. 16 of 2009 and Nakuru HCCC No. 179 of 2011 (O.S)and all orders and rulings issued by the High Court in respect thereof and upon compiling their respective bundles of documents, approach this court for purposes of agreeing on the documents and court orders that would then be used and adopted to reconstruct a court file in respect of Nakuru HCCC No. 188 of 1974for the case to start afresh.

11. I further direct that the above exercise be undertaken and completed within 45 days of these directions. This matter shall be mentioned before me on the 13th April 2017 for further directions and orders.

It is so ordered.

Dated, Signed and Delivered this 28th Day of February 2017.

J.N. MULWA

JUDGE