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ELCPartially AllowedHigh Court at Kakamega Misc. Application No. 01 of 2018· [2018] KEELC 3012 (KLR)

Hadiya Construction Co Limited v Alphonce Litala Namusende [2018] KEELC 3012 (KLR)

Environment and Land Court (High Court) at Kakamega
22 May 2018
NMN.A. Matheka
1,916 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kakamega court allowed a lost case file to be rebuilt but refused to revive injunction orders that had lapsed months earlier.

What this practically means

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Executive summary

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The applicant, Hadiya Construction Co. Ltd alias Hadiya Construction & Minerals Ltd, moved the High Court at Kakamega by notice of motion dated 14th February 2018 under Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act and Order 40 rules 1, 2, 3 and Order 51 Rule 1 of the Civil Procedure Rules. It sought certification as urgent, construction of a skeleton file, liberty to proceed with the action, and reinstatement of interim orders issued on 6th September 2017 in Kakamega High Court ELC No. 314/2017 restraining the respondent from excavating soil on parcel Isukha/Shitochi/100. The applicant contended the court file could not be traced despite repeated registry trips, that the interim orders were inadvertently not extended because its advocate was away presiding over a disciplinary matter at Mumias Sugar Company, and that the respondent had begun excavating soil sold to the plaintiff under a written agreement for gold extraction, occasioning the plaintiff great loss. The respondent opposed reinstatement, deponing that the interim orders lapsed because the plaintiff twice sought adjournments of the inter partes hearing and the court declined to extend them on 21st November 2017; he did not object to a skeleton file being constructed, but alleged perjury in the verifying affidavit in ELC No. 314 of 2017 and implicated the plaintiff in the file's disappearance. The court found no sufficient reason to reinstate orders vacated six months earlier and dismissed that limb, but granted construction of a skeleton file, with costs of the application in the cause.

Key legal issues

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01

Construction of a skeleton file where the original court file is untraceable

Holding

The court granted the prayer for a skeleton file, unopposed by the respondent, to enable the applicant to proceed with the suit

Reasoning

The applicant demonstrated that the main suit filed on 28th August 2017 remains undetermined but the court file cannot be traced despite various registry trips. The respondent did not object to reconstruction of the file. The court found it fair and just that a skeleton file be constructed so the matter could proceed to hearing and final determination, with the applicant free to take an early hearing date.

p. 1
02

Reinstatement of lapsed interim orders of injunction

Holding

The application for reinstatement of the interim orders was dismissed for lack of merit

Reasoning

The interim orders issued on 6th September 2017 were not extended because the plaintiff sought two successive adjournments of the inter partes hearing of the application dated 5th September 2017; on the second occasion the court granted the adjournment but declined to extend the orders. The court found no sufficient reason to reinstate orders vacated six months earlier and directed the applicant to take an early hearing date instead.

p. 2

Legal principles established

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  • Where a court file cannot be traced, the court may order construction of a skeleton file so that the parties can proceed with the hearing and final determination of the matter

Court orders

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  1. 1.That a skeleton file be constructed herein
  2. 2.Costs of this application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A, 63(e)
  • Civil Procedure RulesOrder 40 rules 1, 2, 3; Order 51 Rule 1
Jurisdiction invoked
Sections 1A, 1B, 3, 3A, 63(e) of the Civil Procedure Act; Order 40 rules 1, 2, 3 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Hadiya Construction Co Limited v Alphonce Litala Namusende [2018] KEELC 3012 (KLR)", Case Analysis (2018). High Court at Kakamega Misc. Application No. 01 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3012/eng@2018-05-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.