Elijah Ondego Ayieye v Mini Bakeries (Msa) Limited
The bottom line
#Kenya's Employment Court ruled a magistrate went too far by striking out a worker's injury claim during a file-reconstruction hearing, and ordered the lost court file rebuilt.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was proved to have been struck out on 27th February 2023
Not established; the burden lay on the Respondent under sections 107(1) and 109 of the Evidence Act and it produced no ruling, order, proceedings or record, only its advocate's conjecture.
The Respondent asserted the suit was struck out for want of jurisdiction but exhibited no ruling, extracted order, certified proceedings, case-tracking extract or correspondence. Its advocate's statement that he 'believes' the file suffered the same fate as his closed file was conjecture. The Appellant's own inconsistent accounts left three competing narratives, none established by a court record.
Whether the magistrate could determine jurisdiction and strike out the suit on a reconstruction application
He could not; the only matter before him was the reconstruction motion, no party sought striking out, and deciding an unframed issue without notice breached Article 50(1).
The motion's prayers were confined to reconstruction and safe custody. The Respondent invoked WIBA only to argue futility and could not consistently ask for a fresh determination while pleading functus officio. The magistrate framed an issue neither party framed, decided it on the plaint alone, and granted an unclaimed relief, depriving the Appellant of notice and a chance to be heard.
Whether functus officio barred reconstruction
No; the doctrine bars only merit-based decisional re-engagement after final judgment, and reconstruction is an incidental exercise of the court's inherent power over its own record.
Applying Telkom Kenya v John Ochanda, which adopted Raila Odinga, the court held that a court which has decided a matter retains jurisdiction over incidental proceedings: costs, review, supply of proceedings, and reconstruction of a lost file. The Records Disposal (Courts) Rules confirm a court's record outlives the litigation it records.
Whether the file ought to be reconstructed
Yes; the loss was proved by the registry certificate, tracing efforts were shown and communicated to the Respondent, and the Respondent suffered no prejudice since reconstruction revives nothing.
The registry certified the file untraceable; the advocates' letter to the Executive Officer, copied to the Respondent, satisfied the authorities' requirement of showing the file is lost and asking for tracing. The loss occurred in the court's custody, delay was explained, and no prejudice was shown. The order would establish the true status of the suit on the court's own record.
Legal principles established
#- Every court has inherent authority over its own records, preserved by section 3A of the Civil Procedure Act, independent of its jurisdiction over the underlying dispute.
- Functus officio bars only merit-based decisional re-engagement with a case after final judgment; it does not bar incidental proceedings such as reconstruction of a lost file.
- A court order must be clear on its face; a conditional striking-out order that leaves the status of the suit uncertain cannot stand.
- A court will not determine issues the parties have not placed before it or grant a remedy not applied for; doing so without notice breaches Article 50(1).
Court orders
#- 1.The appeal is allowed
- 2.The Ruling of the trial court delivered on 3rd November 2025 in Mombasa CMCC No. 2047 of 2017 is set aside in its entirety, including the order striking out the suit
- 3.The Notice of Motion dated 30th April 2025 is allowed; the court file shall be reconstructed as a skeleton file from the documents annexed to the application and such other documents as the parties may properly place before the trial court, and kept in safe custody
- 4.Efforts to trace the original file shall continue; if traced, it shall be merged with the skeleton file
- 5.The parties are at liberty to take such steps in the reconstructed file as they may be advised, including on the question of jurisdiction and on the status of the suit; nothing in the judgment determines either question
- 6.The Appellant shall have the costs of this appeal
- On appeal from
- Senior Principal Magistrate's Court at Mombasa
- Mombasa CMCC No. 2047 of 2017
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (first appeal); section 3A Civil Procedure Act (inherent power over court records)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Ondego Ayieye v Mini Bakeries (Msa) Limited", Case Analysis (2026). ELRC Appeal No. E232 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2746/eng@2026-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.