[2022] KEELC 13443 (KLR)
The court found that the applicant had made sufficient efforts to trace the original court file and had provided supporting documentation. Despite the absence of a formal certificate from the deputy registrar confirming the loss, the court held that it would be unjust to allow the applicant to suffer due to...
Source-derived case information.
- Citation
- [2022] KEELC 13443 (KLR)
- Parties
- Applicant: M’Kunyua M’Mwongera; Respondent: Njeri Chege; Respondent: John Kimani Chege; Respondent: Richard Kamau Chege; Respondent: Wanjiru Chege
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application E37 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Reconstruction of Missing Court File
- Outcome
- application allowed
- Judges
- CK Nzili
- Legal Topics
- Reconstruction of Court File, Missing Court Records, Inherent Jurisdiction, Court Registry Procedures
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Kunyua M’Mwongera
Applicant
Njeri Chege
Respondent
John Kimani Chege
Respondent
Richard Kamau Chege
Respondent
Wanjiru Chege
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Reconstruction of Missing Court File
Legal Issues
- 1 Whether the court should order the reconstruction of a missing court file to enable execution of a decree.
- 2 Whether the applicant has satisfied the requirements for reconstruction under the High Court Registry Operations Manual.
Ratio Decidendi
The court found that the applicant had made sufficient efforts to trace the original court file and had provided supporting documentation. Despite the absence of a formal certificate from the deputy registrar confirming the loss, the court held that it would be unjust to allow the applicant to suffer due to non-compliance with internal registry mechanisms. The court exercised its inherent jurisdiction to allow the application for reconstruction of the file, emphasizing the need for justice and expeditious resolution of disputes. The deputy registrar was directed to open a skeleton file in accordance with the registry manual.
Court Disposition
application allowed
Orders
- The deputy registrar shall proceed to open the skeleton file in line with the registry manual.
- There will be no order as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
M’Mwongera v Chege & 3 others (Miscellaneous Civil Application E37 of 2021) [2022] KEELC 13443 (KLR) (12 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13443 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Miscellaneous Civil Application E37 of 2021
CK Nzili, J
October 12, 2022
Between
M’Kunyua M’Mwongera
Applicant
and
Njeri Chege
1st Respondent
John Kimani Chege
2nd Respondent
Richard Kamau Chege
3rd Respondent
Wanjiru Chege
4th Respondent
Ruling
1. The court is asked to order for the reconstruction of Meru ELC No 35 of 2012 M’Ikunyua M’Mwongera v Njeri wa Chege & 3 others allegedly said to be misplaced. The application is supported by two affidavits sworn by Gatari Ringera advocate on the even date and April 26, 2022.
2. The grounds are that the suit was heard and determined on June 26, 2013 and that the decree cannot be executed for lack of the original court file.
3. The applicant has attached copies of the pleadings, the judgment, a register from Tigania law courts and various correspondence seeking for updates about the court file.
4. The respondents are opposed to the application through an affidavit of Wanjiru Chege, the 4th respondent sworn on June 9, 2022. The grounds of opposition are that they were wrongly sued since they are not the registered owners of the suitland. That the application is an abuse of the court process based on half-truths and lacking merits.
5. Mr. Gatari Ringera learned counsel for the applicant reiterated that the deputy registrar has not responded to inquiries over the whereabouts of the original court file despite service with the court’s order and that the replying affidavit herein does not answer to the application.
6. On their part, the respondents submitted that they were not aware of the suit and wondered how it came about.
7. The guidelines on the manner to handle missing court files are contained at Pages 32-34 of the High Court Registry Operations Manual 2ndEdition.
8. In this application, the applicant has attached copies of letters showing the efforts he has made in trying to trace the original court file which have proved unsuccessful.
9. He now invokes the inherent jurisdiction of this court under sections 1A & 1B of the Civil Procedure Act which speak to the just, expeditious, proportionate and affordable resolution of civil disputes.
10. The deputy registrar is required under the manual to issue a certificate to confirm the loss of the original court file and recommend for reconstruction of the file. Even though the applicant says he has initiated the process, there is nothing from the deputy registrar confirming the original file as lost or misplaced.
11. Be that as it may, I have no reason to doubt the applicant. A party should not therefore continue to suffer due to non-compliance with the internal mechanisms under the registry manual.
12. I therefore find it is in the interest of justice to allow the application. The deputy registrar shall proceed to open the skeleton file in line with the registry manual.There will be no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 12TH DAY OF OCTOBER, 2022. In presence of:Gatari Ringera Advocate for applicantRespondents in personC/A: KananuHON. C.K. NZILIELC JUDGE