[2020] KEHC 10168 (KLR)
The court held that it could not consider or rule on the application dated 19th June 2020 in the absence of the original court file. Given the judge's transfer and the unavailability of the file, the matter must be placed before the incoming judge, who will determine whether to hear the application afresh or proceed...
Source-derived case information.
- Citation
- [2020] KEHC 10168 (KLR)
- Parties
- Plaintiff: Eunice Wanjiru Gathithi the legal representative of the estate of the late Fredrick Gathithi Kabue; Defendant: Cannon Assurance Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 151 of 2008
- Procedural Posture
- Civil Suit / Ruling on Interlocutory Application (notice of Motion Dated 19th June 2020)
- Outcome
- Application not determined; matter referred to incoming judge for directions.
- Judges
- MM Kasango
- Legal Topics
- Case File Availability, Adjournment, Transfer of Judge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Wanjiru Gathithi the legal representative of the estate of the late Fredrick Gathithi Kabue
Plaintiff
Cannon Assurance Kenya Limited
Defendant
Procedural Posture
Civil Suit / Ruling on Interlocutory Application (notice of Motion Dated 19th June 2020)
Legal Issues
- 1 Whether the court can determine the application dated 19th June 2020 in the absence of the original court file.
- 2 What directions should be given in light of the judge's transfer and the missing file.
Ratio Decidendi
The court held that it could not consider or rule on the application dated 19th June 2020 in the absence of the original court file. Given the judge's transfer and the unavailability of the file, the matter must be placed before the incoming judge, who will determine whether to hear the application afresh or proceed otherwise. The court emphasized the necessity of the original file for a fair and proper determination of the application.
Court Disposition
Application not determined; matter referred to incoming judge for directions.
Orders
- This file shall be placed before the incoming judge on a date to be fixed.
- The incoming judge and/or the parties may decide whether to hear the application dated 19th June 2020 de novo or not.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION
CIVIL SUIT NO. 151 OF 2008
EUNICE WANJIRU GATHITHIthe legal representativeof the estate of the late
FREDRICK GATHITHI KABUE....................................................PLAINTIFF
VERSUS
CANNON ASSURANCE KENYA LIMITED............................DEFENDANT
RULING
1. The Notice of Motion dated 19th June 2020 was argued before me on 5th August 2020. At the time of hearing that application the original court file of this matter was not availed to me. Upto the time when I sat to consider my Ruling that court file was not availed. It is clear that this matter that was filed in the year 2008 has copious proceeding and court attendances. The application before me requires the court to reconsider the past proceedings in this matter. Since I am on transfer to another court and because I cannot consider my Ruling in the absence of the original file I direct as follows:
a. This file shall be placed before the incoming judge on a date to be fixed.
b. The incoming judge and/or the parties may decide whether to hear the application dated 19th June 2020 de novo or not.
DATED, SIGNED and DELIVERED at NAIROBI this13thday of OCTOBER2020.
MARY KASANGO
JUDGE
Before Justice Mary Kasango
C/A Sophie
For the Plaintiff:
For the Defendant:
ORDER
This decision is hereby virtually delivered this 13thday of October, 2020.
MARY KASANGO
JUDGE