[2021] KEELC 509 (KLR)
The court found that the parties had not provided a certificate from the Deputy Registrar confirming that the file was missing, as required by the Registry Operation Manual. Without exhausting all internal mechanisms to trace the file and obtaining such certification, the court could not order the reconstruction of...
Source-derived case information.
- Citation
- [2021] KEELC 509 (KLR)
- Parties
- Applicant: Geoffrey Mwirigi Maingi Paul; Respondent: Moses Mirira Maingi; Respondent: Francis Mutuma Maingi; Respondent: Nahason Ndereba Maingi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E20 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reconstruction of File and Lifting of Inhibition
- Outcome
- application dismissed
- Legal Topics
- Reconstruction of Court File, Lifting of Inhibition, Registry Procedure, Missing Court Records
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Mwirigi Maingi Paul
Applicant
Moses Mirira Maingi
Respondent
Francis Mutuma Maingi
Respondent
Nahason Ndereba Maingi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reconstruction of File and Lifting of Inhibition
Legal Issues
- 1 Whether the court should order reconstruction of HCC No. 316 of 1992 file.
- 2 Whether the inhibition orders on Parcel No. Abothuguchi/293 should be lifted.
Ratio Decidendi
The court found that the parties had not provided a certificate from the Deputy Registrar confirming that the file was missing, as required by the Registry Operation Manual. Without exhausting all internal mechanisms to trace the file and obtaining such certification, the court could not order the reconstruction of the file. Similarly, the court held that the lifting of the inhibition orders could not be granted in the absence of proper procedural compliance and confirmation of the file's status. The application was therefore dismissed for lack of merit, with no order as to costs.
Court Disposition
application dismissed
Orders
- The application dated 28.6.2021 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
MISC. APPLICATION NO. E20 OF 2021
GEOFFREY MWIRIGI MAINGI PAUL..........................................APPLICANT
VERSUS
MOSES MIRIRA MAINGI..................................................... 1ST RESPONDENT
FRANCIS MUTUMA MAINGI............................................. 2ND RESPONDENT
NAHASON NDEREBA MAINGI.......................................... 3RD RESPONDENT
RULING
1. Before the court is an application dated 28. 6.2021 seeking for reconstruction of HCC No. 316 of 1992 and lifting of inhibition orders issued regarding Parcel No. Abothuguchi/293.
2. The application is supported by an affidavit sworn on 28. 2.2021.
. Further the applicant is relies on written submissions dated 18. 8.2021.
4. The 2nd respondent has filed a replying affidavit sworn on 12. 7.2021. Though he does not oppose re-construction of the he opposes lifting of orders.
5. To buttress their arguments the respondents with leave filed written submission dated 8. 10. 2021.
6. Having gone through the respective positions held by the parties, what comes out clearly is that an appeal was filed before the Court of Appeal Nyeri and was finalized on 3. 10. 2012. The point of departure for the parties is who is to blame for the delay thereafter.
7. As is admitted by both parties, the Nyeri Court of Appeal registry has not provided the date the file exited from their system to help the court check from its end.
8. Similarly the file was being determined at the time the ELC courts were being established and or operationalized. It may as well be true the file having been a High Court file, the same was returned to the High Court registry and not the ELC registry. There are procedures clearly set out under the Registry Operating Manual on how to trace, declare and certify a file as missing and or lost before an order can be made for the opening of a skeleton file.
9. In my view, parties herein have not supplied to this court any certificate of confirmation that the file is missing from the Deputy Registrar. In absence of that it is my finding the internal mechanism to trace the file and explore all avenues to trace the file have not been exhausted.
10. I therefore make an order that the Deputy Registrar in line with the 2nd Edition of the High Court of Kenya Registry Operation Manual takes appropriate measures within 45 days from the date hereof.
11. Regarding the issue of lifting the inhibition, none of the parties can be blamed over the “alleged” missing file given the circumstances of this matter.
In the premises I find no merits in this application. The same is dismissed with no orders as to costs.
File closed.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 8TH DAY OF DECEMBER, 2021
In presence of:
Muthomi for applicant
Miss Nyaga for respondent
HON. C.K. NZILI
ELC JUDGE