Mbugua v Njoroge (Civil Miscellaneous E1636 of 2025) [2026] KEHC 9724 (KLR) (Civ) (1 July 2026) (Ruling)

Mbugua v Njoroge (Civil Miscellaneous E1636 of 2025) [2026] KEHC 9724 (KLR) (Civ) (1 July 2026) (Ruling) Neutral citation: [2026] KEHC 9724 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Miscellaneous E1636 of 2025 AM Okutoyi, J July 1, 2026 Between Peter Njogu Mbugua Applicant and Peter Kiiru Njoroge Defendant Ruling Background 1.Before this Court is an application dated 25th November 2025 brought under Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21 and Article 159 of the Constitution of Kenya 2010 seeking orders for leave to reconstruct a skeletal file in Civil Suit 452 of 1979. 2.The application is based on the following grounds;a.That on 7th November 2025, the Applicant wrote to the Deputy Registrar hoping to access the file number Civil 452 of 1979 as he wanted to be mapped out and file a Notice of Motion.b.That on 12th November 2025, the Deputy Registrar wrote back and confirmed that efforts to trace the file in their registry archives was not successful. However, the records indicated that the file was disposed off under the Records Disposal Act but the date of disposal had not been captured in the register.c.That the Deputy Registrar office could also not trace the relevant Gazette Notice and the Destruction Certificate hence the need to reconstruct the subject file.d.That the Applicant is now desirous to be granted leave to construct a skeleton file to enable him file his application for further orders on the subject file.e.That the subject suit land is now in the hands of a stranger a situation which needs to be urgently rectified. 3.The application is supported by an affidavit sworn by the Applicant Peter Njogu Mbugua wherein it is deposed that efforts by the Deputy Registrar to locate the file have not been futile. 4.It is further deponed that in the file Civil 452 of 1979, the Applicant had sued the Respondent for specific performance of their land sale agreement for land title deed number Lari/Kirenga/898 which has been produced as annexure to this present application. 5.The Applicant further depones that a consent judgment was entered by the parties and a decree of the court extracted on 16th November 1979 and subsequently a title deed number Lari/Kirenga/898 issued to the Applicant. All these have been attached to the application as annexures. 6.The Applicant deponed in his application that that there have been several court processes including reverting the title in the Defendant’s name (who is now deceased) and that he has nothing to rely on in as the file with the original decree cannot be traced. 7.The Applicant depones that in the interest of justice the court to also issue an order restating its pronunciation in the issued decree in the suit of the subject file Civil 452 of 1979 and allow the reconstruction of the file. 8.The application has not been responded to despite service being effected on the 13th of December 2025. This court will then proceed with the application deemed unopposed and the averments remain uncontroverted. Analysis and Determination 9.I have foremost, taken note of the age of the file sought to be reconstructed. It is not in dispute that the matter was filed in the year 1979 over 45 years ago and a land matter situate in Limuru Kiambu County and that the same has been disposed. I have further considered the pleading by the Applicant, the relevant provisions of the Constitution of Kenya, 2010 and the relevant statutes. 10.The issue for determination in this application is whether this court shall order the reconstruction of the missing file and, if so whether consequential orders ought to issue. 11.The jurisdiction of the Court to order reconstruction of a missing court record flows from its inherent jurisdiction preserved under Section 1A, 1B, and 3A of the Civil Procedure Act. The provisions obligate the court to facilitate the just, expeditious, proportionate and affordable resolution of disputes and make such orders as may be necessary for the ends of justice. 12.the Constitution equally guarantees every person the right to access justice under Article 48 and enjoins Court under Article 159 (2) (d) to administer justice without undue regard to procedural technicalities. 13.Arising from the foregoing, it is this court’s view that the court can in fact make necessary orders in the interest of justice so as to prevent abuse of the court process. This court also appreciates that there is no specific law or practice directions on the issue of reconstruction of lost files. 14.Where a court record cannot be traced, the Court cannot permit that circumstance alone to permanently defeat the parties right to be heard. Rather, where sufficient material exists, the court is empowered to give orders on the reconstruction of record. 15.Reconstruction of a missing file is an administrative duty exercised by the Court. The Environment and Land Court in Henry Odero Mbira versus Peter Ngove Makau 2014 eKLR whilst appreciation that the reconstruction is a purely administrative role exercised by the Deputy Registrar held that in the absence of a specific provision of the law on reconstruction of missing and lost files the High Court Operations Manual is instructive. 16.The High Court of Kenya Registry Operation Manual specifically at pages 33-34, paragraph 4.6 provides for the following guidelines on tracing, reconstruction and opening of skeleton files: -“If a file is missing, the Registry will take the following steps:-a.The Registry Supervisor checks the file movement register to identify the person in whose possession the file was last recorded. The Supervisor instructs him/her to trace the file.b.If the file is not traced, the Registry Supervisor circulates a memo to all staff in the Station/Registry asking them to check whether the file is in their possession. If the file is not found within 24 hours, the Supervisor will notify the Deputy Registrar.c.The Deputy Registrar then initiates a special search.d.If the file is not traced after this first search, the Registry Supervisor writes the words ‘original file missing’, in pencil, on the relevant case register.e.The Registry Supervisor then enters the details of the missing file in the register of missing files which is maintained by the Registry Supervisor.f.After a fruitless search of 14 days, the Deputy Registrar issues a certificate to confirm the loss and recommends the reconstruction of the file.g.Parties are informed of the non-availability of the file in writing by the Deputy Registrar with a recommendation for reconstruction.h.In the event that a missing file is traced, the date of recovery is recorded in the case register and its availability is communicated to the parties concerned by the Deputy Registrar within 24 hours of its tracing. A certificate confirming the recovery is issued.i.The file once traced is merged with any skeleton file that may have been opened.” 17.In this particular case, the Applicant in his supporting affidavit has narrated the ordeals he has surmounted in order to retrieve the original file in Milimani HCCC 452 of 1979. Through a letter to the Deputy Registrar Milimani Civil Division dated 7th November 2025 (PNM 001) he made a request for reconstruction of the missing file after a fruitless search at the Registry. 18.The Deputy Registrar in response and vide a letter dated 12th November 2026 PNM 002 acknowledged that the original file in Milimani HCCC 452 of 1979 is missing and that the same has been destroyed in accordance with the provision of Records Disposal Act as per the Register. However, the date of the disposal is not captured as such the Destruction Certificate and the Gazette notice cannot be retrieved. 19.Clearly, the Applicant herein has undertaken all the steps outlined by the Registry Manual and his efforts to retrieve the file from the registry as well as the archives are without any success. Similarly, the Deputy Registrar Milimani Civil Division has issued a written communication confirming disposal of the file and a recommendation for reconstruction. This position has not been opposed and controverted by the Respondent. 20.It is worth pointing out that once an order for the reconstruction of a file has been issued, both parties shall supply necessary records and/or pleadings. In the case of Abdul Karim Omar Vs Stephen Ngumbau Kithuka [2017] eKLR the court held that:“If a file is missing the court has internal procedures to apply to trace the same but the applicants herein have no control over the same and can only move as herein done and seeking for the reconstruction of the file not traced.” 21.The Applicant has annexed the following documents to this application; A plaint dated 13th February 1979, a consent judgment, a decree dated 3rd April 1980, and a Land certificate. 22.It is important to underscore that the purpose of reconstructing a file is not to create a fresh suit or alter the parties rights. It is simply to restore, as nearly as possible, the original court record from authentic documents available from the parties, the registry or any lawful source. 23.In the case of Mbira v Makau (2024) KEELC 5413 (KLR), the courts observed that reconstruction is an exceptional remedy which should only be awarded where there is sufficient evidence that the original file cannot be traced after diligent search, and where reconstruction is necessary to facilitate the administration of justice. 24.Having considered the application and the information from the Deputy Registrar, I am satisfied that sufficient cause has been shown for the exercise of this Court’s inherent jurisdiction. 25.I am further satisfied that reconstruction will serve the interests of justice and ensure that any dispute is determined on merits rather than being defeated on the loss of a court record. 26.I am further left with a question to determine the outstanding substantives in terms prayers 3, 4 & 5 of the application herein. The substantive prayers seeking transfer of the original suit and declaration of the Applicant herein as the lawful proprietor of the suit property in HCCC 452 of 1979. 27.From the pleadings presented, the subject matter concerns ownership and/ or interest in land. Following the promulgation of the Constitution of Kenya, 2010 and resultant establishment of the Environment and Land Court pursuant to Article 162(2) (b) of the Constitution and Section 13 of the Environment and Land Act, jurisdiction of the subject matter squarely lies in that court. 28.The Court is of the view that the intended purpose of this Miscellaneous application is just for the reconstruction. If the Applicant intended to seek some prayers other than the ones for reconstruction, he can bring the same upon reconstruction of the file. As held in Mbira vs Makau (Supra) a reconstruction application/suit cannot be used to determine the application in the mother file. 29.This Court’s intervention therefore in the present application will be confined to the reconstruction of its own record of Civil Suit number 452 of 1979. Once that record has been duly reconstructed and certified, then the file should be properly situated in the Environmental and Land Court, which is the court vested with the jurisdiction to determine any substantive dispute in the subject matter. Disposition 30.Accordingly, I make the following orders;a.The application herein is allowed.b.The Deputy Registrar, Milimani Civil Division shall undertake and supervise the reconstruction of the court file.c.The parties shall within 30 days, file certified legible copies of all documents related to this suit including but not limited to pleadings, affidavits, annexures, exhibits, judgments and decrees.d.The Deputy Registrar shall compile and certify the reconstructed record after verifying the authenticity of the documents.e.Upon certification of the reconstructed file, the Deputy Registrar shall forthwith transmit the reconstructed file to the Environmental and Land Court. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 1ST OF JULY 2026.A.M. OKUTOYIJUDGEIn the Presence of:Peter Njogu Mbugua-Applicant in personN/A for the RespondentCourt Assistant: Ruth Mokeira