[2013] KEELC 42 (KLR)
The court found that the application for file reconstruction could not be supported under Order 23 of the Civil Procedure Rules, as that provision relates to attachment of debts. However, the court held that Section 3A of the Civil Procedure Act grants it inherent discretion to make any order necessary to ensure the...
Source-derived case information.
- Citation
- [2013] KEELC 42 (KLR)
- Parties
- Applicant: Lorna Jemutai Rono & Another; Respondent: David Oito
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 12 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for File Reconstruction
- Outcome
- application allowed
- Legal Topics
- File Reconstruction, Missing Court Record, Environment and Land Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lorna Jemutai Rono & Another
Applicant
David Oito
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for File Reconstruction
Legal Issues
- 1 Whether the court should order reconstruction of a missing court file.
- 2 Whether the application is properly anchored in law given the cited provisions.
Ratio Decidendi
The court found that the application for file reconstruction could not be supported under Order 23 of the Civil Procedure Rules, as that provision relates to attachment of debts. However, the court held that Section 3A of the Civil Procedure Act grants it inherent discretion to make any order necessary to ensure the ends of justice are met. Upon confirmation from Justice Ibrahim that the original file could not be traced, the court was satisfied that the file was lost or misplaced. Accordingly, the court exercised its inherent jurisdiction to permit reconstruction of the file and directed that the reconstructed file be registered in the Environment and Land Court registry.
Court Disposition
application allowed
Orders
- An order is issued permitting the reconstruction of the missing file in Eldoret HCCC No. 73 of 2007.
- Upon reconstruction, the file shall be registered in the Environment and Land Court registry.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
E&L MISC APPL 12 OF 2013
LORNA JEMUTAI RONO & ANOTHER …..............................................APPLICANTS
VS
DAVID OITO........................................................................................RESPONDENTS
RULING
The applicant commenced this miscellaneous cause under the provisions of Section 1 A, 1 B, and 3A of the Civil Procedure Act, and Order 23 (1) of the Civil Procedure Rules. The application seeks orders that a new file be reconstructed in respect of the suit filed as Eldoret HCCC No. 73 of 2007 and upon being constituted, the said file be registered under the Environment and Land Court registry.
Order 23 cannot of course support an application of this nature as it relates to the attachment of debts. The court under Section 3A however has discretion to make any order to ensure that the ends of justice are met.
From the supporting affidavit, I can tell that an application for injunction was canvassed before Ibrahim J (as he then was) on 29/5/2007 and ruling was reserved. However, no ruling has been delivered and the file is missing from the registry.
When the counsels first appeared before me on 10 April 2013, I was hesitant in giving the order of reconstruction until there has been confirmation from the Deputy Registrar, or the judge who was previously handling the matter, that indeed the original file cannot be traced. Justice Ibrahim was gracious enough to write a letter to confirm that the file cannot be traced. Given that correspondence, I am satisfied that the file is either lost or misplaced and cannot be found.
I therefore issue an order permitting the reconstruction of the file in issue and that upon reconstruction, the same be filed in the Environment and Land Court. I make no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 3RD DAY OF OCTOBER 2013
JUSTICE MUNYAO SILA
ENVIRONMENT AND LAND COURT AT ELDORET
Read in open Court
In the Presence of:-
Mr. R.L. Kamau holding brief for Mr. Maritim for the applicant
Mr. P.K. Komen holding brief for M/s Terer & Co for the respondent