https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12193

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **MISC. CIVIL CASE NO. E030 OF 2023** **IN THE MATTER OF THE ESTATE OF PETER MATHENGE MBURUGA (DECEASED)** **NANCY WAMBUI MURIITHI………….…..…………………….1ST RESPONDENT** **DAVIS MBATIA WAMBUI………………....…………………….2ND RESPONDENT** **WANJOHI MWEA KAMOTHO…………....…………………….3RD RESPONDENT** **MICHAEL WACHIRA GICHUKI………….…………………….4TH RESPONDENT** **MANASSES NJERU NYAMU……………....…………………….5TH RESPONDENT** **NANCY WAWIRA MIRITI………………….……………………6TH RESPONDENT** **ROSE WAWIRA MIRITI……………………..……….…………..7TH RESPONDENT** **PAULINE MABUTI MATHENGE…………..…..………………..8TH RESPONDENT** **VERSUS** **JOYCE MABUTI MATHENGE………………………………………….APPLICANT** **RULING** 1. By a Notice of Motion dated 4/4/2024 pursuant to Section 47 of the Law of Succession Act, Rules 49 and 73 of the Probate and Administration Rules, Order 50 Rule 6 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law, the Applicant seeks that: 1. *Spent* 2. *Spent* 3. *Spent* 4. *Failure to comply with order (c) above, this court be pleased to set aside the judgment delivered on 29th May, 2020 in Kerugoya High Court Succession Cause No. 126 of 2014, the case be heard de novo and orders of inhibition registered against the titles of land parcel numbers Kabare/Nyangati/8301, 8302, 8303, 8304, 8305, 8306, 8307, 8308, 8309, 8310 and 8311 be reinstated.* 5. *Costs of the application be provided for.* 2. The application is premised on the grounds on the face of it and supporting affidavit of Joyce Mabuti Mathenge, the Applicant herein, sworn on even date. She avers that she filed summons for revocation of grant in Kerugoya High Court Succession Cause No. 126 of 2014, which was dismissed on 29/3/2020. Aggrieved by the said dismissal, she filed a Notice of Appeal, and applied to be furnished with certified copies of the proceedings and the judgment for purposes of appeal. In the intervening period, an order was issued for preservation of the suit parcels of land, namely Kabare/Nyangati/8301, 8302, 8303, 8304, 8305, 8306, 8307, 8308, 8309, 8310 and 8311. Mysteriously, the court file disappeared before she obtained the typed proceedings, and an application dated 16/3/2023 for re-construction of the court file was allowed. The Respondents then successfully obtained orders discharging the inhibition on 25/1/2024. She has persistently sought for the original Court file in Succession Cause number 126/2014 to no avail, and can neither file a record of appeal in the Court of Appeal, nor make any application in succession cause number 126 of 2014 because it has been missing. She therefore humbly urges this court to come to her aid in granting orders to avail the court file in Succession cause number 126 of 2014, or in default, the case be declared a mistrial and the judgment be set aside for the case to start a fresh. She further urges that the new file be placed under lock and key, and the proceedings be typed as and when they take place, and be supplied to the parties. 3. The Respondents opposed the application vide a replying affidavit sworn by Wanjohi Mwea Kamotho, the 3rd Respondent herein on 9/4/2024. He avers that this court is *functus officio* and has no power to proceed and issue orders on a case that has already been heard and determined on merit. In his view, the Applicant has been indolent and only woke up from slumber when the Respondents sought the discharge of the interim orders issued during the hearing and determination of the summons for revocation dated 20/4/2017. The application is an afterthought aimed at delaying the Respondents from enjoying the fruits of the judgment as the main file Succession 126/2014 had already been reconstructed. The Applicant was granted 60 days stay to prosecute her appeal in the Court of Appeal, to no avail. The application was filed with inordinate delay, and it was *res judicata* as the Applicant recourse was to appeal to the Court of Appeal. There were no grounds to warrant the setting aside of the judgment as all parties herein participated fully and were heard fairly and the inhibition lapsed upon the hearing and determination of the summons dated 20/4/2017. **Submissions** 1. The Applicant urges that she is entitled to access justice under Article 48 of the Constitution and beseeches this court, in the exercise of its discretion under section 47 of the Law of Succession Act to grant the orders sought. She urges that in the event that the court file cannot be traced, justice would demand that the case be heard afresh, and prays for the application to be allowed. 2. The Respondents urge that some of the witnesses they procured during trial have since passed on while others are unreachable to testify afresh and litigation must certainly come to an end. They urge that the Applicant does not even live on the suit land and is a busy body who had no relationship with the deceased. They urge that the law does not help the indolent as no explanation has been given why the application was filed 5 years after this court issued its judgment, and cite *Mbilo v Republic (Criminal Appeal 266 of 2017) (2025) (KLR), Jackson Kabiri Karuru v Mary Njoki Njuguna (2022) eKLR and John Gilbert Ouna v Kenya Ferry Services Ltd (2021) eKLR*. They urge that this court is *functus officio* having already issued a judgment back in 2020, where the Applicant fully participated. **Analysis and Determination** 1. After carefully considering the application, the response and the submissions on record together with the authorities relied on, this court discerns the singular issue for determination to be whether the threshold for the grant of the orders sought therein has been met. 2. The unusual circumstances of this case, where the trial court file goes missing thereby rendering an appeal from the decision by the unsuccessful party impossible, is one of exceptional circumstances that would warrant the invocation of the inherent jurisdiction of teh Court under section 3A of the Civil procedure act, which provides as follows: *“****3A. Saving of inherent powers of court.*** *Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”* 1. Following the delivery of the judgment on 29/5/2020, the Applicant lodged her Notice of Appeal within the prescribed time on 12/6/2020. The record reveals that she immediately applied for certified copies of typed proceedings and the judgment, for purposes of preparing the Memorandum of Appeal, as shown by the letters dated 12/6/2020 and 13/2/2024. It cannot therefore be said that the Applicant slept on her rights or was in any way indolent in pursuing her appeal. 2. The delay in prosecuting the intended appeal is attributable to circumstances beyond the Applicant’s control, as the trial court file was reportedly lost, thereby rendering it impossible to prepare the record of appeal. Although the file has since been reconstructed, the certified proceedings remain unavailable, without which the Applicant cannot compile a competent record of appeal. It would be manifestly unjust to visit upon the Applicant the consequences of administrative lapses within the court registry over which she had neither control nor influence. The Court registry has confirmed that the file is lost and all efforts to trace it, including seeking help of the Directorate of Criminal Investigations whose report of 7/10/2025 finally recommends reconstruction of the file, have been fruitless. 3. The Court is satisfied that the Applicant has met the threshold for the grant of the orders sought. The provisions for inherent jurisdiction of the Court belie any issue of *functus officio* does not arise. The Court is not being asked to decide the same matter twice. It is that the record of court having been misplaced, there can no challenge on the decision, which in the interest of justice, must be set aside to enable the rehearing resulting in a judgment on the matter from which the applicant may properly appeal. As the Court that heard the matter is still available at a different Court station, and this not being an appeal from the decision of that Court, it is appropriate to have the matter re-heard before the same court. **ORDERS** 1. Accordingly, for the reasons set out above, and in the interest of justice, the application for revocation of grant dated 20/4/2017 shall be heard *de novo* before the Court that had the matter. 2. Mention for directions as to rehearing on 17/9/2026 before Lady Justice Gitari. 3. There shall be no orders as to costs. *Order accordingly.* **DATED AND DELIVERED THIS 30TH DAY OF JULY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Kagio for the Applicant. Ms. Kimotho with Mr. Kipruto for the respondent.