2nd Objector v Defendants (suit caption not stated in the ruling)
The bottom line
#A Kenyan court ruled that only proceedings actually recorded in the court file exist, so a litigant cannot demand copies of judgments or orders that never happened.
What this practically means
#Executive summary
#Key legal issues
#Existence of the alleged judgment and proceedings of 19th June, 2008
None existed; the record shows Ochieng J first handled the matter on 14th October, 2008.
The court did not accept the applicant's premise at face value but examined the court record. It found Ochieng J's first involvement was on 14th October 2008, when the applicant himself appeared and obtained an adjournment, and that no orders issued on 19th June 2008. Because the alleged judgment and proceedings of that date never existed, the foundation of the application - documents needed to amend a review application - collapsed, and relief built on that date was refused.
Whether Anziya filed any ex-parte application or documents
No; Anziya had not filed any application or documents for determination by the court.
The applicant believed Anziya had lodged an ex-parte application generating the judgment of 19th June 2008. The court found on the record that Anziya had filed no application or documents, and that the 28th October 2008 disposal rested on an oral request. With no document in existence, no direction to furnish copies could issue. This finding underpinned both the refusal of prayer 2 and the implicit rejection of the direction sought against Anziya.
Character of the 28th October, 2008 dismissal and the remedy open to the applicant
The dismissal was on Anziya's oral request for non-attendance; the applicant may still apply to explain his absence.
Tracing the chronology from the record, the court established that the hearing date of 28th October 2008 was taken in the applicant's presence on 14th October 2008. His absence that day prompted Anziya's oral request for dismissal, which Ochieng J granted with costs to the defendants. Because the request was oral and no written application lay before the court that day, the judge signalled that the applicant may still apply to explain the absence, leaving an avenue open to him.
Entitlement to supply of proceedings and certified copies
Prayer 2 refused for non-existence of the proceedings; the remaining proceedings to be typed and certified copies issued on payment of the required fee.
A litigant's access to the court record was honoured only to the extent the record existed. Typed proceedings ran only to a date well before the events in question, so the judge directed that the remaining proceedings be typed and certified copies issued on payment of the required fee. Certification on payment is the ordinary administrative entitlement; the order preserves the applicant's ability to pursue review or other applications with the true record before him.
Legal principles established
#- A litigant is entitled to typed certified copies of court proceedings upon payment of the required fee.
- The court record, not a party's assertion, determines what proceedings and orders exist; relief premised on non-existent proceedings must fail.
Court orders
#- 1.The remaining proceedings (beyond those already typed) to be typed and certified copies issued to the applicant upon payment of the required fee.
- 2.Prayer 2 of the application dated 21st August, 2009 not granted, there being no proceedings before Justice Ochieng on 19th June, 2008.
- 3.The applicant is at liberty to make an application explaining his non-attendance on 28th October, 2008.
- 4.The applicant is at liberty to execute the remainder of his application.
- 5.No order as to costs.
- Jurisdiction invoked
- Not stated in the ruling; the application was entertained by the High Court in a matter pending before it (no constitutional or statutory provision cited).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "2nd Objector v Defendants (suit caption not stated in the ruling)", Case Analysis (2009). Not stated in the ruling. Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.