https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12509

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HIGH COURT CIVIL APPEAL NO 123/2013 Benard M Mugo Vs Akamba Timber Co Ltd RULING Before the court is the notice of motion dated 21st July 2025 which is seeking the following orders: 1. That this Honorable Court be pleased to order that the lower Court matter Machakos CMCC number 714 of 2011 be heard afresh on merit. 2. That this Honorable Court be pleased to grant leave to the defendant to file a defense in the matter and that parties file any other pleadings if they so wish. 3. That the cost of this application be provided for. The application is supported by the affidavit of Gladys Gichuki and on other grounds among them: 1. That the lower court file is missing and all efforts to trace the same for purposes of filing a record of appeal have not been successful. 2. That the Honorable Court issued an order on 24th June 2024 directing the appellant advocate to file a formal application towards reconstructing the lower Court file. 3. That pursuant to the court's directions both advocates in the matter were to liaise and assist for purposes of obtaining the pleadings towards reconstruction of the lower court file. 4. That the appellant /applicants counsel on record only came in at the appeal stage after the demise of the applicant’s previous counsel and was not able to retrieve the applicant’s file from his previous deceased advocates. 5. That the pleadings from the lower court are not available because the primary court file cannot be traced and neither do the advocates herein have the entire pleadings filed thus the reconstruction of the lower court file is impossible. 6. That the defense of the appellant was struck out after the appellant's previous advocates inadvertently failed to append his signature at the foot of the pleading (defense). 7. That the lower court struck out the unsigned defense and improperly entered judgment for the plaintiff/ respondent herein instead of giving the defendant/ appellant a chance to file a proper defense and of have the matter proceed to formal proof. 8. That it is the practice of this court that inadvertent mistakes of counsels should not be visited on innocent litigants. 9. That since it has become practically impossible to reconstruct the lower court file it is in the interest of justice that the lower court matter be heard afresh on merit to avoid an unfair prejudice to the appellant. 10. That the defendant /appellant has a meritorious defense which ought to be considered towards a fair and just determination of this matter. 11. That no prejudice will be suffered by the respondent if the lower court file suit is heard afresh because the respondent has equally been frustrated by the missing file since no further action including execution is possible. In the supporting affidavit shown by Gladys Gichuki, the advocate representing the applicant, she stated that she was appointed by the appellant to represent him in this matter on 29th August 2018. Previously, the appellant was represented by the late Dixon Konya who had passed away some months before the issuance of a notice to show cause against the appellant. That upon coming on record they made spirited efforts to retrieve the applicant’s file from his previous advocate offices but were not successful as they reliably learned that all the late advocates personal belongings and office equipment including office files were transported to his rural home in Western Kenya during his burial. Between the period 2018 to 2019, they also made spirited efforts through letters and visits to the court registry to trace the court file to enable them to reconstruct the file to no avail. On 17th July 2019 Honorable Justice Odunga while granting orders of stay of execution of the decree directed the Deputy Registrar to facilitate the tracing of the court file and once the same was traced, the record of appeal be compiled and filed within 60 days. Despite efforts by the Deputy Registrar in conjunction with lower court staff and the parties herein, the lower court file has never been traced, and the only available option now is reconstruction of the court file. Again, on 24th June 2024 this court directed the appellant’s counsel to liaise with the respondent’s counsel towards obtaining the pleadings to reconstruct the lower court file. The respondent’s counsel through a letter dated 28th June 2024 intimated that the only pleadings in their records were the plaint, appearance and decree. These pleadings are not sufficient for reconstruction of the lower court file. She stated that the plaintiff /respondent will not suffer any prejudice if the matter is heard afresh because his hands are equally tied since they're not able to move the court for execution in the absence of a court file. On the other hand, the appellant/ applicant stands to suffer substantial injustice if the judgment is left to stand as it is. No replying affidavit was filed by the respondent Parties then filed written submissions to the application. APPLICANTS SUBMISSIONS They are dated 11th March 2026. They formulated the issues for determination to be: 1. Whether this court has jurisdiction to order a matter to start de novo where the lower court file is missing and reconstruction is impossible. 2. Whether the appellant has shown sufficient cause for grant of leave to file a defense. 3. Whether the respondent will suffer prejudice if the matter is heard afresh On whether this court has the requisite jurisdiction to grant the orders sought, it was submitted that section 78(1)(e) of the Civil Procedure Act cap 21 Laws of Kenya expressly empowers and appellate court in the exercise of its appellate jurisdiction to order a retrial where the circumstances so warrant. These powers are discretionary and are to be exercised to advance the ends of justice particularly where a matter cannot be determined on appeal due to absence of a proper records or where party has been denied an opportunity to be heard on merit. On the issue of completeness of record of appeal, it was submitted, that the availability of a plaint, appearance and decree are not sufficient for reconstruction of lower court file and the only option available is for this matter to start de novo since the same was never heard on merit. Though the respondent has contended that this court cannot order the matter to start afresh, since there is a pending appeal, it was submitted that due to the fact that the appeal cannot be heard and be determined as there is no complete record of appeal. Since the defense is not available it was their contention that that the applicant has shown sufficient cause for grant of leave to file a defense. They also argued that the respondent will not suffer any prejudice if the matter is heard afresh. RESPONDENT'S SUBMISSIONS. They are dated 15th December 2025. They gave the history of the matter as follows: The respondent filed CMCC number 714 or 2011 seeking for a liquidated claim of Ksh 240,000. The appellant/ applicant filed an appearance on 9th September 2011 and then a defense which was not signed. The respondent filed a notice of preliminary objection to have the appearance and defense struck out for want of service within 7 days and want of signature of the defense and service. The applicant filed grounds of opposition and submissions to the preliminary objection and the court struck out the appearance and defense. The applicant at this point was at liberty to file them anew and comply with the law but he ignored that opportunity. On 20th July 2012 the respondent filed an application for summary judgement since the applicant had not filed fresh pleadings and the applicant fully participated by filing grounds of opposition replying affidavit and submissions. On 18th July 2013. Judgment was entered in the sum of 240,000 with costs and interest. On 15th August 2013 a decree of the court was issued and the respondent took out warrants of attachment and sell and proclaimed the applicants goods. On 12th August 2013 the applicant filed and application for stay pending appeal and the court gave a conditional state in the following terms: half the critical sum to be paid and the other half to be deposited in court in 14 days. The applicant appellant never complied but instead filed another application for stay in the magistrate’s court that has never been prosecuted todate. They then filed the present appeal on 24th July 2014 and also sought a stay of execution of the judgement of the magistrate’s court case number 714 of 2011. The learned judge granted a stay and ordered that the appeal be heard in 60 days and the lower court file to be availed. These orders were never complied with. On 24th June 2024 Justice Odunga directed the applicant to reconstruct the file in the magistrate’s court and these directions were never complied with. They submitted that the applicant should have made an application in the lower court for reconstruction of the file if at all it was misplaced. It is their contention that courts are under obligation to guard and ensure compliance with court orders. The High Court has powers to proceed with the appeal and to grant any order after hearing the appeal. This is because there is an appeal that is before the court and the same has not been heard and determined. This court therefore cannot order for this matter to be heard afresh when there is a pending appeal. In the case of Kenya Commercial Bank Ltd and another verses Muiri Coffee Estate Ltd and three others (motion 42 and 43 of 2014) (consolidated) (2016) KESC 6 KLR 19th May 2016 at Parag 49 stated: “The question of missing records has been of concern to the courts, time and again. Many other occasions when the court has ordered for the reconstruction of court files, (which form part of the court record). In some cases reconstruction has failed to yield the desired results; and this appears to be the case in the instant matter.” The respondent’s position is that the appeal should be heard and determined and that there is no need for reconstruction of the file. It should be noted that the appeal can only be heard and determined if a record of appeal is available. There is no dispute that the lower court file is missing, and consequently no record of appeal can be filed. In the case of Kenya Commercial Bank Supra states that the centrality of the court record goes to the principle of access to justice in terms of Article 47 of the Constitution. It goes without say that without a record of appeal the appeal cannot be determined hence the appellant cannot have the appeal heard and determined. From the history given by the respondent here, it is clear that the matter was not determined on its merits in the lower court. It is only fair and just if the case is reopened and determined on merit. The issue of the appeal is moot. In the upshot, this court finds that the application is merited and thus allowed. The appeal cannot be heard mainly because the lower court records are missing. I now order that the lower court records be reconstructed by the appellant with the assistance of the DR and the respondent. The appellant is granted leave to file his defence in the lower court to complete his documents which are required in the reconstruction of the lower court file. The matter should then be fixed for pre-trials and then proceed to be heard de novo so that the matter can be determined on the merits and expeditiously. The appellant is not completely innocent for the delay in this matter and therefore will not get costs of this application. Each party bear their own costs. READ IN OPEN COURT THIS 22ND JUNE 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON LJ JOYCE GANDANI JUDGES