[2021] KEHC 13100 (KLR)
The court found that the applicant had made sufficient efforts to retrieve the missing file and that the application was uncontested. In the interest of justice and to facilitate the administration of the deceased's estate, the court allowed the reconstruction of the file. The court further directed that better and...
Source-derived case information.
- Citation
- [2021] KEHC 13100 (KLR)
- Parties
- Applicant: Rose Mweru (Deceased); Respondent: Deputy Registrar, Family Division
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 1522 of 1992
- Procedural Posture
- Probate and Administration Cause / Ruling on Notice of Motion for File Reconstruction
- Outcome
- application allowed
- Judges
- FM Mutuku
- Legal Topics
- Probate File Reconstruction, Rectification of Grant, Estate Administration, Missing Court File
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rose Mweru (Deceased)
Applicant
Deputy Registrar, Family Division
Respondent
Procedural Posture
Probate and Administration Cause / Ruling on Notice of Motion for File Reconstruction
Legal Issues
- 1 Whether the court should allow the reconstruction of the missing probate and administration file.
- 2 Whether the pleadings and documents annexed to the supporting affidavit should be accepted as copies of the original file.
Ratio Decidendi
The court found that the applicant had made sufficient efforts to retrieve the missing file and that the application was uncontested. In the interest of justice and to facilitate the administration of the deceased's estate, the court allowed the reconstruction of the file. The court further directed that better and clearer copies of the pleadings and attachments be provided, as the current ones were not legible. The court emphasized the necessity of a complete and legible record for the proper administration of justice and directed the parties to take a date at the Registry after reconstruction.
Court Disposition
application allowed
Orders
- The Notice of Motion dated 31st March 2021 is allowed as prayed.
- The file in this matter shall be reconstructed.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
PROBATE AND ADMINISTRATION CAUSE NO. 1522 OF 1992
IN THE ESTATE OF ROSE MWERU (DECEASED)
RULING
This is a short ruling in respect of Notice of Motion dated 31st March 2021 seeking to have the file in this matter reconstructed and that the pleadings and documents annexed to the Affidavit in support of the Notice of Motion be accepted as copies of the original file and costs. The application is supported by the grounds found on the face of the application and in the supporting affidavit sworn by Mr. Gikandi Ngibuini counsel for the Petitioner/Applicant.
The grounds in support are that the Petitioner filed summons for rectification of the grant on 24th February 2021 but their efforts to retrieve the file in this matter have been fruitless; that they wrote letters to the Deputy Registrar of the Family Division to have the file availed without response; that the reason for seeking the rectification of the grant is to enable the Petitioner to include in the list of properties forming the estate of the deceased a parcel of land that had been inadvertently omitted, being Land Reference No. Nanyuki/West Timau Block 1/12, to enable subdivision.
The Notice of Motion is brought under certificate of urgency. I have considered the application and the attached documents including the pleadings. I have also considered brief submissions by Mr. Mwanzia holding brief for Mr. Gikandi in virtual proceedings. I have noted that this file was listed today before this court. Against the file number in today’s cause list was writings by hand indicating that the file is missing. A skeleton file was prepared and this Notice of Motion and attachments was placed in the file. The application is uncontested. In the interest of justice I hereby allow the Notice of Motion dated 31st March 2021 as prayed. I direct that this file be reconstructed. However, I note that it is necessary to provide better and clear copies of the pleadings and attachments. The documents already provided as attachments to this Notice of Motion are not legible. Counsel is directed to provide better copies to enable the Registry Family Division reconstruct this file. After reconstruction, parties shall take a date in the Registry. Orders to issue accordingly.
DATED, SIGNED AND DELIVERED THIS 26TH MAY 2021.
S. N. MUTUKU
JUDGE