Kenya Seed Company Ltd v Dakianga Distributors (K) Ltd (Miscellaneous Civil Application E002 of 2025) [2026] KEHC 12918 (KLR) (22 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT KISII** **MISCELLANEOUS CIVIL APPLICATION NO. E002 OF 2025** **KENYA SEED COMPANY LIMITED………..………....APPLICANT** **=VERSUS=** **DAKIANGA DISTRIBUTORS (K) LTD……………….RESPONDENT** **RULING** 1. This is an Application for reconstruction of the court file in KISII HIGH COURT CIVIL CASE NO. 146 of 2005 where the Applicant was the Plaintiff; and in it was successful. In the judgment that was delivered in the Applicant’s favour on 31st December 2011. Awarding the Applicant a sum of Ksh 8, 776, 580= plus interest. As against the Respondent who was the Defendant. 2. Aggrieved by that judgment, the Respondent lodged in the Court of Appeal at Kisumu, CIVIL APPEAL NO. 168 OF 2011. The Applicant filed a cross-appeal seeking enhancement of the award to Ksh 11,104,180=. The Respondent's appeal was dismissed, while the Applicant's cross-appeal was allowed, and judgment entered as prayed. 3. The Applicant returned to this Court to execute the judgment, but discovered that said court file had been taken to the Archives and destroyed. It has now by this Application seeking an order for the reconstruction of the file so that it may execute. 4. The Application has stated that because of the unavailability of the court file, it is even unable to obtain a decree so as to proceed with execution. Which process was hampered by the absence of the original court file. The same having been disposed following a Gazette Notice issued on 31st March 2021. 5. The Application which is dated 30th January 2025, is supported by the Supporting Affidavit of ANDREW MMBOGORI. It is seeking that, that original court file in this Court, be reconstructed to enable the Applicant extract the decree and proceed with execution. 6. The Respondent has opposed the Application through vide a Replying Affidavit of KENNEDY BOSIRE GICHANA sworn on 24th February 2025. In which it is contended that reconstructing the file will serve no useful purpose, as the dispute the subject of this suit was by the said Appeal, escalated to the Court of Appeal. ***Analysis and Determination*** 1. The Application was canvassed by way of written submissions. With each party filing its submissions. The submissions were later highlighted orally by the parties’ advocates. 2. Upon considering the Application, the Respondent’s Replying Affidavit, as well as the parties’ rival submissions, I find that the only issue for determination is whether the said court file should be reconstructed. In determining that issue, the Court has to answer the following questions: 3. *Whether it has jurisdiction;* 4. *Whether the Application meet the legal threshold for an application of this nature;* 5. *Whether the order sought (of reconstruction of the said court file) should be granted; and* 6. *Who should bear the costs of this Application.* 7. The Application has stated that it has been brought pursuant to Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21 Laws of Kenya) and Order 51 of the Civil Procedure Rules. The Civil Procedure Act and the Civil Procedure Rules have no specific provision on reconstruction of court files. Order 51 is only a peripheral provision stating the form in which an application should be. 8. In my view, the court’s power to order reconstruction of a court file or a court’s missing record, flows from the exercise of the court’s inherent jurisdiction. That jurisdiction is provided for in 3A of the Civil Procedure Act. Which provides as follows: **Saving of inherent powers of the 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 an abuse of the process of court.”** 1. In the exercise of this inherent power, a court may make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of court. An order for reconstruction of a missing court file or missing court file is consistent with this inherent power. 2. It is also consorts with Article 48 of the Kenya Constitution which guarantees the right to access justice. A similar view was taken by Naikuni J, in ***Mbira v. Makau [2024] KEELC 5413 (KLR)***. Therefore, an injudicious or unreasonable denial of an application for reconstruction of a missing court file or missing court record, may curtail access or impede access to justice, hence violate that constitutional provision. 3. Besides, Article 159 (2) (d) enjoins courts to administer justice without undue regard to procedural technicalities. In my view, the absence in the Rules of a specific legal provision is a procedural technicality or a nicety of procedure, which the court in the pursuit of substantive justice may cure by invoking its inherent jurisdiction. In my considered view, this is one way in which Article 159 (2) (d) is invoked. 4. As correctly observed by Naikuni J in **Mbira v. Makau** (supra), appreciated the fact that reconstruction of missing files is also an administrative duty that may be exercised under the **High Court Operational Manual Second Edition**. At pages 33 – 34 it states as follows: **“If a file is missing, the Registry will take the following steps:-** 1. **The Registry Supervisor checks the file movement register to identify the person in whose possession the file was last recorded. The Supervisor instructs him/her to trace the file.** 2. **If the file is not traced, the Registry Supervisor circulates a memo to all staff in the Station/Registry asking them to check whether the file is in their possession. If the file is not found within 24 hours, the Supervisor will notify the Deputy Registrar.** 3. **The Deputy Registrar then initiates a special search.** 4. **If the file is not traced after this first search, the Registry Supervisor writes the words ‘original file missing’, in pencil, on the relevant case register.** 5. **The Registry Supervisor then enters the details of the missing file in the register of missing files which is maintained by the Registry Supervisor.** 6. **After a fruitless search of 14 days, the Deputy Registrar issues a certificate to confirm the loss and recommends the reconstruction of the file.** 7. **Parties are informed of the non-availability of the file in writing by the Deputy Registrar with a recommendation for reconstruction.** 8. **In the event that a missing file is traced, the date of recovery is recorded in the case register and its availability is communicated to the parties concerned by the Deputy Registrar within 24 hours of its tracing. A certificate confirming the recovery is issued.** 9. **The file once traced is merged with any skeleton file that may have been opened.** 10. Reconstruction is appropriate where it is necessary to facilitate the administration of justice and where there is sufficient evidence that the original file has been lost, destroyed, or cannot be retrieved despite diligent efforts. 11. In the case of the Applicant, the Application has stated that the Applicant received a letter from the Deputy Registrar of this is Court dated 24th January 2025; notifying him of the disposal of the file and that the file was destroyed. The said letter further stating that the Court was unable to provide copies of the proceedings applied for as the record was condemned for disposal under the Records Disposal Act (Cap 14 Laws of Kenya), and destroyed. It also stated the Gazette Notice pursuant to which the disposal and destruction were done. 12. These facts are uncontroverted by the Respondent’s Response. Although the Deputy Registrar’s said letter did not recommend reconstruction, I find that this is a proper case in which reconstruction should be ordered. Given that reconstruction avails, where it is necessary to facilitate justice, and where there is sufficient evidence that the original file or original record is lost or cannot be traced or cannot be retrieved; even upon diligent efforts being made. 13. Having carefully considered the Application and all the facts and surrounding circumstances I am satisfied that the reconstruction of the said court file will serve the interests of justice. I therefore allow the Application, and order that the said court file be reconstructed. 14. To that end, the parties are hereby directed to supply to the Deputy Registrar, within 30 days from the date of this ruling, copies of all the pleadings, proceedings, rulings, the judgement, and other documents that formed part of the court record in KISII HIGH COURT CIVIL CASE NO. 146 OF 2005. The reconstruction shall be undertaken by the High Court Civil Registry under the supervision of the Deputy Registrar. 15. As the loss of the court file was occasioned by administrative circumstances beyond the control of the parties, each party shall bear its costs of this Application. **DATED and DELIVERED at KISII on this 22nd day of July 2026.** **PROF (DR) NIXON SIFUNA** **JUDGE**