[2007] KEHC 2 (KLR)
The court found that the absence of the original lower court record, which was destroyed by fire, made it impossible to properly determine the appeal. Since the record of appeal only contained photocopies of pleadings and some exhibits but not the full proceedings, judgment, or decree, the court held that the only...
Source-derived case information.
- Citation
- [2007] KEHC 2 (KLR)
- Parties
- Appellant: Socfinaf Company Limited; Respondent: Kinyanjui Karu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 661 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Appeal After Loss of Lower Court Record
- Outcome
- lower court judgment and proceedings set aside; retrial ordered; each party to bear own costs
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Appeal Record Loss, Retrial Order, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Socfinaf Company Limited
Appellant
Kinyanjui Karu
Respondent
Procedural Posture
Civil Appeal / Ruling on Appeal After Loss of Lower Court Record
Legal Issues
- 1 Whether an appeal can proceed in the absence of the original lower court record destroyed by fire.
- 2 Whether the judgment and proceedings of the lower court should be set aside and a retrial ordered.
Ratio Decidendi
The court found that the absence of the original lower court record, which was destroyed by fire, made it impossible to properly determine the appeal. Since the record of appeal only contained photocopies of pleadings and some exhibits but not the full proceedings, judgment, or decree, the court held that the only just solution was to set aside the lower court judgment and order a retrial. This approach ensures that both parties have the opportunity to present their case afresh and that the ends of justice are met, especially given the unique and unavoidable circumstances of the record's destruction. The court further ordered that the retrial be conducted expeditiously and that each party...
Court Disposition
lower court judgment and proceedings set aside; retrial ordered; each party to bear own costs
Orders
- The judgment and proceedings of the lower court are set aside in their entirety.
- A retrial is ordered based on the copies of pleadings on record.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 661 OF 2003
SOCFINAF COMPANY LIMITED ………………APPELLANT
VERSUS
KINYANJUI KARU ……………………………RESPONDENT
RULING
Following the decision of the lower court, the appellant was aggrieved thereby and filed the present appeal. However, the entire original lower court record could not be availed because it was destroyed by a fire that took place at the court premises at Gatundu.
The record of appeal does not therefore contain the proceedings, Judgment and decree of the lower court. However, photocopies of all the pleadings, submissions by counsel and some exhibit are contained in that record.it is clear that the appeal cannot proceed without the lower court record from which the said appeal arises. The learned counsel for the appellant has moved the court for the substantive order that the judgment of the lower court is set aside and he case be herd afresh.
The circumstances obtaining present a unique challenge yet a solution must be found so that the ends of justice are met. This is an old matter as the cause of action to have taken place on 9th July, 2002 going by the copy of the plaint in the record.
This appeal was filed on 7th October, 2003 following the judgment which was delivered on 11th September, 2003. A lot of time has gone by but in view of the fact that the lower court record is incomplete without the original file the only order that commends itself is a retrial. Accordingly the lower court judgment is hereby set aside alongside the proceedings in their entirety. There shall be a retrial based on the copies of pleadings on record. This retrial shall be conducted expeditiously in view of the obtaining circumstances. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 1st Day of February, 2007
A. MBOGHOLI MSAGHA
JUDGE