[2006] KEHC 2314 (KLR)
The court found that the disappearance of the court file, while serious, was not attributable to any party in the absence of evidence. The application to open a skeleton file was allowed as it was unopposed and necessary for the plaintiff to proceed with execution of judgment. The court further ordered police...
Source-derived case information.
- Citation
- [2006] KEHC 2314 (KLR)
- Parties
- Plaintiff: Noordin F. H. Rajabali; Defendant: Kutubdin A. Khanbhai; Defendant: Husseinbhai Khanbhai; Defendant: Hatimi Joinery Works Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 190 of 2002
- Procedural Posture
- Civil Suit / Ruling on Application to Reconstruct File
- Outcome
- Application to open skeleton file allowed; police investigation ordered; no order as to costs.
- Legal Topics
- Reconstruction of Court File, Lost Court Records, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Noordin F. H. Rajabali
Plaintiff
Kutubdin A. Khanbhai
Defendant
Husseinbhai Khanbhai
Defendant
Hatimi Joinery Works Ltd
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Reconstruct File
Legal Issues
- 1 Whether the court should allow the opening of a skeleton file after the original court file was lost.
- 2 Whether there is any basis for allegations of foul play in the disappearance of the court file.
- 3 Whether police investigations should be ordered into the disappearance of the court file.
Ratio Decidendi
The court found that the disappearance of the court file, while serious, was not attributable to any party in the absence of evidence. The application to open a skeleton file was allowed as it was unopposed and necessary for the plaintiff to proceed with execution of judgment. The court further ordered police investigations into the disappearance of the file to ensure transparency and accountability, directing the Deputy Registrar to liaise with the police. The reconstructed file is to be kept securely by the Executive Officer. No order as to costs was made.
Court Disposition
Application to open skeleton file allowed; police investigation ordered; no order as to costs.
Orders
- A skeleton file shall be opened to enable the plaintiff to proceed with court action.
- The Deputy Registrar shall immediately liaise with the police to commence investigations into the disappearance of the court file.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Suit 190 of 2002
NOORDIN F. H. RAJABALI………………...............................................…………PLAINTIFF
VERSUS
1. KUTUBDIN A. KHANBHAI
2. HUSSEINBHAI KHANBHAI
3. HATIMI JOINERY WORKS LTD……...................................................……DEFENDANTS
RULING
The court file in this case is lost and the Executive Officer tells me it has not been traced inspite of diligent search having been made. The plaintiff’s application to have a skeleton file opened has therefore to be allowed. In any case it is not opposed by the defendant. If anything, Mr. Aboo, counsel for the defendant, has provided three sets of all the documents in the lost file for the reconstruction of the skeleton file.
Getting lost at the time it did when the plaintiff had obtained judgment and was in the process of executing the decree, the plaintiff suspects foul play in the matter. That is clear from his advocates’ letters to the court with copies to the defendants’ advocates. The letters, counsel for the defendant submits, insinuate that the defendant and or his advocates must have been involved in the disappearance of the file. Having considered the matter and talked with the Executive Officer I find no basis for that insinuation and I would advise counsel to avoid making such suggestions when they have no evidence to back them.
This court takes a serious view of the disappearance of court files. To clear the air in this matter and as requested by counsel for the plaintiff I order police investigations into this matter. If police find evidence connecting anyone with the disappearance of the court file they should not hesitate to take appropriate action. The Deputy Registrar should immediately liaise with the police to commence investigations. In the meantime I direct that a skeleton file be opened to enable the plaintiff proceed with what ever court action he wishes to take. That skeleton file should be kept by the Executive Officer under lock and key. I make no order as to costs in the matter.
DATED and delivered this 16th day of May 2006.
D. K. MARAGA
JUDGE