[2007] KEHC 563 (KLR)
The court declined to grant the order for reconstruction of the court file because the applicant failed to provide any evidence or material showing efforts to trace or locate the file. The supporting affidavit was silent on this crucial aspect, and there was no basis upon which the court could exercise its...
Source-derived case information.
- Citation
- [2007] KEHC 563 (KLR)
- Parties
- Applicant: Republic Ex Parte Nathan Kutoto; Respondent: Senior Executive Officer, The Chief Magistrate's Court at Kakamega; Interested Party: Samson Chapia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- ? 37 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Reconstruction of Court File and Striking Out Motion
- Outcome
- application dismissed
- Legal Topics
- Judicial Review, Certiorari, Prohibition, Reconstruction of Court File
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic Ex Parte Nathan Kutoto
Applicant
Senior Executive Officer, The Chief Magistrate's Court at Kakamega
Respondent
Samson Chapia
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Reconstruction of Court File and Striking Out Motion
Legal Issues
- 1 Whether the court should grant the order for reconstruction of the court file in the absence of evidence of efforts to trace the file.
- 2 Whether the application for striking out the Notice of Motion and vacation of leave to apply for judicial review orders should be granted.
Ratio Decidendi
The court declined to grant the order for reconstruction of the court file because the applicant failed to provide any evidence or material showing efforts to trace or locate the file. The supporting affidavit was silent on this crucial aspect, and there was no basis upon which the court could exercise its discretion to order reconstruction. The application appeared to focus solely on striking out the Notice of Motion and vacating the leave to apply for judicial review orders, without substantiating the prayer for reconstruction. Consequently, the court dismissed the application in its entirety for lack of supporting evidence.
Court Disposition
application dismissed
Orders
- The application for reconstruction of the court file is dismissed.
- No order is made for striking out the Notice of Motion or vacating the leave to apply for judicial review orders.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT KAKAMEGA
MISC CIV APPL 37 OF 2003
IN THE MATTER OF APPLICATION FOR JUDICIAL REVIEW ORDERS OF
I. CERTIORARI
II.PROHIBITION
IN RELATION TO THE JUDGEMENTS RULINGS AND ORDERS ARISING IN THE KAKAMEGA CHIEF MAGISTRATE’S COURT CIVIL SUIT NO. 485/2000 AS OF 22/07/2002 APPERTAINING TO THE LAWFUL OWNERSHIP OF PLOTS NO. 2 AND 18 OF IKOLI MARKET OF KAKAMEGA COUNTY COUNCIL
REPUBLIC
EX PARTE NATHAN KUTOTO::::::::::::::::::::::::::::::::::: PPLICANT/RESPONDENT
=VERSUS=
SENIOR EXECUTIVE OFFICER
THE CHIEF MAGISTRATE’SCOURT AT KAKAMEGA :::::::::::::::::::: RESPONDENT
AND
SAMSON CHAPIA :::::::::::::::::::::::::::::::::::::::INTERESTED PARTY/APPLICANT
RULING
On 7. 5.2007, Mr. Khalwale, the learned counsel for Samson Chapia, the Interested party/Applicant, urged the court to grant the orders prayed for in the Notice of Motion dated 1st November, 2004 including an order for reconstruction of the court file.
The prayer for reconstruction of the court file cannot be considered simultaneously with an order for striking out of Notice of Motion or the vacation of the order for leave. Although the court has power to order reconstruction of the court file and to decline to give the other orders sought in the application, there must be a case made out for reconstruction. But in the affidavit in support of the application, there is not a whimper about efforts to have the court file traced or located. There is not a scintilla of evidence to show that any efforts have ever been made to trace the court file. As there is no material before the court to support the prayer for reconstruction of the file, I am disinclined to grant the application which seems to have focused only on the prayer for striking out of the Motion and vacation of the leave to apply for the orders of certiorari and prohibition. I dismiss the application.
Dated at Kakamega this 8th day of November, 2007.
G. B. M. KARIUKI
J U D G E