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ELRCOtherMiscellaneous application in ELRC Petition No. 2 of 2013 (application dated 9th October, 2019)· [2020] KEELRC 1621 (KLR)

Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute [2020] KEELRC 1621 (KLR)

Employment and Labour Relations Court
23 January 2020
1,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Before asking a Kenyan court to reconstruct a missing file, you must first get written confirmation from the court registry that the file is genuinely lost.

What this practically means

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Executive summary

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The applicants, petitioners in Nakuru ELRC Petition No. 2 of 2013, applied for leave to open a skeleton file and reconstruct the court file, which could not be traced at the registry when their advocate sought to file a party and party bill of costs following judgment delivered on 3rd May 2013 and the conclusion of appeals in Civil Appeal Nos. 271 and 315 of 2015. The respondent, through the affidavit of its Director General Dr Eliud Kireger, opposed the application on the ground that the Deputy Registrar had not issued a certificate confirming the file was lost and recommending reconstruction, making the application premature. Both parties relied on Abdul Karim Omar v Stephen Ngumbau Kithuka [2017] eKLR. The court, applying section 11 of the Employment and Labour Relations Court Act, 2011, held that reconstruction of a missing file is an internal matter for the Registrar as official custodian of court records, and outlined the internal tracing procedure, culminating in a certificate of loss after a fruitless 14-day search. It held that without written communication from the custodian confirming the file cannot be traced, there is a presumption the file remains in the office's custody, rendering the application premature. The court directed the Registrar, ELRC and the Deputy Registrar(s) Nakuru to undertake the outlined steps within 21 days, after which the parties would be at liberty to move the court afresh. It made no orders on costs.

Key legal issues

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01

Preconditions for an application to reconstruct a missing court file

Holding

The application is premature unless the Registrar/Deputy Registrar has issued a certificate or written communication confirming the file is lost and recommending reconstruction

Reasoning

Section 11 of the ELRC Act, 2011 places custody of all court files on the Registrar and Deputy Registrars. Following Abdul Karim Omar v Stephen Ngumbau Kithuka, the court outlined internal tracing steps: checking the file movement register, memo circulation, special search, entries in the missing files register, and after 14 days' fruitless search, a certificate confirming loss and recommending reconstruction. Only after such written confirmation are parties justified in seeking reconstruction. The applicants' letters to the Deputy Registrar went unanswered, which the court noted, but the formal confirmation had not issued.

p. 2
02

Whether the respondent would suffer prejudice

Holding

No prejudice would be visited on the respondent from reconstruction once properly triggered

Reasoning

The court observed that once a reconstruction order is issued both parties would supply the necessary records, and the respondent suffers no prejudice from the process. However, the procedural prerequisite of confirmation by the custodian had not been met, so the application was premature rather than meriting outright dismissal on the merits.

p. 2

Legal principles established

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  • Reconstruction of a missing court file is an internal matter of the Registry, and parties may only seek reconstruction after the Registrar or Deputy Registrar, as official custodian of court files under section 11 of the ELRC Act, confirms in writing that the file cannot be traced
  • Without written communication from the custodian of court records confirming the file is missing, there is a presumption the file remains in the custody of the office legally mandated to keep it

Court orders

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  1. 1.The Registrar, ELRC and the Deputy Registrar(s) Nakuru shall attend the outlined internal steps for tracing missing files within twenty one (21) days
  2. 2.Upon confirmation by the responsible officer, the parties shall be at liberty to move the court as appropriate
  3. 3.No orders on costs

Authorities

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Legislation

  • Employment and Labour Relations Court Actsection 11

Cases cited (1)

  • Abdul Karim Omar versus Stephen Ngumbau Kithuka
    [2017] eKLR
Jurisdiction invoked
Section 11 of the Employment and Labour Relations Court Act, 2011

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, "Peter Wambugu Kariuki & 16 others v Kenya Agricultural Research Institute [2020] KEELRC 1621 (KLR)", Case Analysis (2020). Miscellaneous application in ELRC Petition No. 2 of 2013 (application dated 9th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1621/eng@2020-01-23

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