[2018] KEHC 5477 (KLR)
The court determined that the continued unavailability of the trial court file would prevent resolution of the dispute between the parties. To avoid injustice and ensure the matter is heard on its merits, the court invoked its inherent powers to order the parties to reconstruct the lower court file using documents...
Source-derived case information.
- Citation
- [2018] KEHC 5477 (KLR)
- Parties
- Appellant: Mark Otengo; Appellant: Said Ahmed Hamdun (suing on his behalf and on behalf of Majengo Mapya Community Policing Unit); Respondent: Mustafa Salim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 100 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Case Management Due to Missing Lower Court File
- Outcome
- Parties ordered to reconstruct the lower court file and matter to be heard de novo before a different magistrate; no order as to costs.
- Judges
- CA Otieno
- Legal Topics
- Reconstruction of Court Record, Inherent Powers of Court, De Novo Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Otengo
Appellant
Said Ahmed Hamdun (suing on his behalf and on behalf of Majengo Mapya Community Policing Unit)
Appellant
Mustafa Salim
Respondent
Procedural Posture
Civil Appeal / Ruling on Case Management Due to Missing Lower Court File
Legal Issues
- 1 Whether the appeal can proceed in the absence of the trial court file.
- 2 What steps should be taken to ensure the dispute is resolved despite the missing file.
Ratio Decidendi
The court determined that the continued unavailability of the trial court file would prevent resolution of the dispute between the parties. To avoid injustice and ensure the matter is heard on its merits, the court invoked its inherent powers to order the parties to reconstruct the lower court file using documents in their possession. The court further directed that the matter be heard de novo before a magistrate other than the one who previously handled it, thereby safeguarding the integrity of the process and the parties' right to a fair hearing.
Court Disposition
Parties ordered to reconstruct the lower court file and matter to be heard de novo before a different magistrate; no order as to costs.
Orders
- The parties shall reconstruct the lower court file using documents in their possession.
- The matter shall be heard de novo by a magistrate other than Hon. Nyakweba.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 100 OF 2016
1. MARK OTENGO
2. SAID AHMED HAMDUN(Suing on his behalf and on behalf of
MAJENGO MAPYA COMMUNITY POLICING UNIT) ....................APPELLANT
VERSUS
MUSTAFA SALIM............................................................................. RESPONDENT
R U L I N G
1. Ever since this Appeal was filed no steps have been taken to move it forward due to unavailability of the trial court file.
2. If that persists it won’t be possible to resolve the dispute between the parties yet it is the duty of the court to keep its files for the public to access at all times.
3. To avoid an injustice getting unabated, and while invoking the inherent powers of the court, I now order that the parties do reconstruct the lower court file, with documents they have, and to have the matter heard de novo by a magistrate other than Hon. Nyakweba who has dealt with it in the past.
4. I order that there be no order as to costs.
Dated and delivered at Mombasa this 20th day of June 2018.
P.J.O. OTIENO
JUDGE