[2012] KEHC 3292 (KLR)
The court held that it lacked jurisdiction to re-hear the application dated 20th July 2009 because orders had already been issued on that application. Unless the parties consent to set aside those orders or the plaintiff applies to have them set aside under the relevant provisions of the Civil Procedure Rules, the...
Source-derived case information.
- Citation
- [2012] KEHC 3292 (KLR)
- Parties
- Plaintiff: Muturi Kimani; Plaintiff: Martha Wanjiru; Defendant: Douglas Mwangi Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 153 of 1998
- Procedural Posture
- Civil Case / Ruling on Application to Re Hear Application After File Reconstruction
- Outcome
- Application to re-hear the application dated 20th July 2009 dismissed for want of jurisdiction.
- Judges
- P Nyamweya
- Legal Topics
- Reconstruction of Court File, Jurisdiction of Court, Setting Aside Orders, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muturi Kimani
Plaintiff
Martha Wanjiru
Plaintiff
Douglas Mwangi Kimani
Defendant
Procedural Posture
Civil Case / Ruling on Application to Re Hear Application After File Reconstruction
Legal Issues
- 1 Whether the court can proceed to hear the application dated 20th July 2009 during the pendency of existing orders on the same application.
- 2 Whether the reconstructed court file allows for re-hearing or further proceedings without setting aside previous orders.
Ratio Decidendi
The court held that it lacked jurisdiction to re-hear the application dated 20th July 2009 because orders had already been issued on that application. Unless the parties consent to set aside those orders or the plaintiff applies to have them set aside under the relevant provisions of the Civil Procedure Rules, the court cannot proceed. The reconstructed file does not alter this position. The plaintiff is, however, at liberty to seek recourse in the Court of Appeal regarding the stay orders or abatement of appeal as per the Civil Procedure Rules.
Court Disposition
Application to re-hear the application dated 20th July 2009 dismissed for want of jurisdiction.
Orders
- The court declines to proceed with the determination of the application dated 20th July 2009 unless existing orders are set aside by consent or formal application.
- The plaintiff is at liberty to proceed in the Court of Appeal regarding the stay orders or abatement of appeal.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
Civil Case 153 of 1998
MUTURI KIMANI
MARTHA WANJIRU..................................................................................................PLAINTIFFS
VERSUS
DOUGLAS MWANGI KIMANI.................................................................................DEFENDANT
RULING
The Plaintiffs state that they filed an application dated20th July 2009 which was heard by this Court and orders given on 15th June 2010, but that the said orders could not be extracted because the court file went missing from the court registry soon thereafter. ThePlaintiffsfurther state that the suit filed herein had been heard and finalised, and they were trying to execute the judgment through the said application. ThePlaintiffsthen filed an application dated 2nd March 2011 for reconstruction of the court file, which orders were duly given on 25th July 2011 by the Honourable Mrs. Rose Ougo, the Senior Principal Deputy Registrar (as she then was).
As the court record is missing, thePlaintiffsat a hearing on 14th November 2011 requested that the said application dated 20th July 2009 be heard again and determined on the basis of the reconstructed court file.After consideration of the Plaintiff’s submissions, I find that I must first determine the preliminary issue of whether this Court can proceed to hear the application during the pendency of orders given on the same application by this Court. I find on this issue that unless the parties to the suit filed herein agree by way of consent to set aside the said orders, or the Plaintiff applies to have the said orders set aside under Order 45 of the Civil Procedure Rules of 2010 or other applicable provisions of the law, this Court has no jurisdiction to proceed with the determination of the application dated20th July 2009.
Having perused the reconstructed court file, I do however note that the Plaintiff is at liberty to proceed in the Court of Appeal under Order 42 (6) (1) of the Civil Procedure Rules with regard to the setting aside of the stay orders given by this Court, or under Order 24 of the Civil Procedure Rules as regards the abatement of the appeal filed against the judgment given by this Court.
Orders accordingly.
Dated, signed and delivered in open court at Nairobi this 25th day of January, 2012.
P. NYAMWEYA
JUDGE