https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4033

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCEPMISC CASE NO. E002 OF 2025** **KURIA NJOGU MBUGUA:::::::::::::::::::::::::::::::::::::::::::::::APPLICANT** **VERSUS** **RASHID ADAN ABDI::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **RULING** The application is dated 7th March 2025 and is brought under Sections 1A, 1B & 3A of The Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules seeking the following; 1. The Honourable Court may be pleased to order that reconstruction of the court file be used to reconstruct the file in Machakos Environment and Land Court Cause No. E074 of 2023 between Kuria Njogu Mbugua VS Rashid Adan Abdi. 2. Upon reconstruction of the court file, the same be kept in the court's registry's strong room. 3. The costs of this application to be in the suit. Which application is based on the following ground and on the annexed affidavit of Phyllis Njaari Ngaruiya and the other grounds that the court file pertaining to this matter has been missing since 25th September 2024 when it was scheduled for a mention before the Deputy Registrar, Hon Otindo. This makes it impossible for the Applicant to continue to litigate this matter. That justice delayed is justice denied and the loss of this file denies the Applicant his quest for justice. That the Applicant has repeatedly reminded the court registry to look for the court file, but the same has been futile. That the court file has been missing and cannot be traced despite several searches. That there is a need to have the matter determined. After considering the application and submissions therein, the only issue that arises for determination is whether the court should order for reconstruction for the file in Machakos Environment and Land Court Cause No. E074 of 2023 between Kuria Njogu Mbugua vs Rashid Adan Abdi. The court in the case of [Abdul Karim Omar v Stephen Ngumbau Kithuka](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3316) (2017) eKLR considered the process of reconstruction of a lost filed and stated as follows; *“23. In the 2nd Edition of the High Court of Kenya Registry Operation Manual at pages 33-34, paragraph 4.6 the following guidelines on tracing and reconstruction of missing files are found: -“If a file is missing, the Registry will take the following steps: -* *a) 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.* *b) 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.* *c)The Deputy Registrar then initiates a special search.* *d)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.* *e) The Registry Supervisor then enters the details of the missing file in the register of missing files which is maintained by the Registry Supervisor.* *f) After a fruitless search of 14 days, the Deputy Registrar issues a certificate to confirm the loss and recommends the reconstruction of the file.* *g) Parties are informed of the non-availability of the file in writing by the Deputy Registrar with a recommendation for reconstruction.* *h) 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.* *i)The file once traced is merged with any skeleton file that may have been opened.”* The Applicant in the present matter alleged that the court file has been missing and cannot be traced despite several searches. The Applicant attached to two letters to the Deputy Registrar to aid in searching for the file. The court in the case of [Peter Wambugu Kariuki & 16 others vs Kenya Agricultural Research Institute](https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1621) (2020) eKLR held as follows; *“At this stage, the court registrar or the appointed Deputy Registrar for the court…being the official custodian of all court files must confirm that upon request by the parties to file documents under Petition 2 of 2013 Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute this file cannot be traced and or has been misplaced as upon such written communication then the parties can rightly be justified in seeking for the reconstruction of such a missing and or misplaced file. Without such communication, there is a presumption that the office/officer legally mandated to keep the court records has the same in his/her custody.* *The internal steps thus outline as above referenced, though internal are a good operational tool coupled with the written communication from the official custodian of court records, the Registrar or the appointed Deputy Registrar(s)…It shall be imperative for the officer responsible for the custody of the court file(s) to issue written Communication in this regard and on the request by the applicant. Reference shall be the steps outline above and noted in Abdul Karim Omar v Stephen Ngumbau Kithuka [2017 eKLR…Upon confirmation by the responsible officer as above and the court Registrar or the Deputy Registrar(s), the parties herein shall be at liberty to move the court as appropriate. A timeline is envisaged under the internal process for tracing missing files. Such time is reasonable and upon lapse, the parties without being put into unnecessary expense are at liberty to move the court as appropriate.At this instance, the application dated October 9, 2019 seeking for the reconstruction of the court file in petition 2 of 2013 Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute is premature.”* Similarly, in the present case, apart from the two letters to the Deputy Registrar, Machakos Environment and Land Court, the Applicant did not produce any document or communication from the Deputy Registrar to indicate that the file was missing and could not be traced. As was held in the case of Peter Wambugu Kariuki & 16 others vs Kenya Agricultural Research Institute (supra) without the said communication from the Deputy Registrar, there is a presumption that the officer mandated to keep the court records has the same in their custody. Consequently, it is my view that the Applicant’s application is premature as the requisite procedure for tracing of the file has not been followed. The Deputy Registrar of this court shall take up the matter and follow the requisite procedure within the next 30 days. Each of the parties shall bear their own costs of the application. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 1ST DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**