Mbira v Makau (Miscellaneous Application 28 of 2023) [2024] KEELC 5413 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Reconstruction of a missing court file
The application was allowed; despite initial doubts about the sufficiency of proof of loss, the court in the interest of justice permitted opening of a skeleton file and mutual reconstruction within 21 days
The court held reconstruction is consistent with Article 48 access to justice, invoking the inherent jurisdiction under Section 3A of the Civil Procedure Act. Although the applicant had not obtained a Deputy Registrar certificate of loss as the Registry Operation Manual requires, and the court was not satisfied the applicant had proven the loss, the court nonetheless exercised discretion in the interest of justice to allow reconstruction so the dispute could be better understood.
Whether applications in the mother file (ELC 185 of 2018) can be determined in the miscellaneous file
No; the miscellaneous application was for reconstruction only and the oral prayers were declined
The purpose of Miscellaneous Application No. E028 of 2023 was only reconstruction of the missing file. Any other prayers should have been included in the application dated 17th March 2023. The court is 'flying blind' without the reconstructed file and cannot make orders that would be in vain; the applicant must reconstruct the main suit then seek determination of the applications.
Costs of the application
No orders as to costs
Under Section 27 of the Civil Procedure Act costs follow the event but remain at the court's discretion, to be exercised with regard to the circumstances of each case as explained in Morgan Air Cargo. Given the conflicting positions of the parties and the interest of justice in reconstruction, the court declined to award costs to either side.
Legal principles established
#- An order for reconstruction of a missing court file is consistent with Article 48 of the Constitution on access to justice, and declining it where the loss is not the party's fault denies access to justice
- Reconstruction of lost files is a purely internal and administrative affair of the registry, governed in the absence of specific law by the High Court Registry Operation Manual guidelines
- An applicant for reconstruction must demonstrate, by correspondence, efforts to have the file availed; unfounded reconstruction claims would multiply files for the same case
- Costs follow the event subject to the court's discretion under Section 27 of the Civil Procedure Act
Court orders
#- 1.Notice of Motion application dated 17th March, 2023 allowed entirely
- 2.A skeleton file for Mombasa Environment & Land Court Case No. 185 of 2018 (OS): Peter Ngove Makau v Henry Odero Mbira be forthwith opened
- 3.Leave granted to both the Applicant and Respondent to mutually agree and reconstruct the Court file within 21 days from the date of the Ruling
- 4.Upon reconstruction the reconstructed file be merged with the skeleton file
- 5.Mention on 1st October, 2024 to ascertain progress, conduct a Pre-Trial Conference under Order 11 of the Civil Procedure Rules, 2010 and for further directions
- 6.No orders as to the costs of the Notice of Motion application dated 17th March, 2023
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act, Cap. 21; Article 48 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Elijah Ondego Ayieye v Mini Bakeries (Msa) Limited[2026] KEELRC 2746 (KLR)30 Sept 2026
- Gichamba v CFC Stanbic Bank Ltd[2026] KECA 1754 (KLR)25 Sept 2026applied
Cite this brief
#Cite this brief
Caselaw, "Mbira v Makau (Miscellaneous Application 28 of 2023) [2024] KEELC 5413 (KLR)", Case Analysis (2024). Miscellaneous Application No. E028 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5413/eng@2024-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.