Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
High CourtPartially AllowedNot stated in the ruling· Not available

2nd Objector v Defendants (suit caption not stated in the ruling)

High Court of Kenya
12 November 2009
476 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

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

#
This ruling of the High Court at Kakamega, delivered by Said J. Chitembwe, Judge, on 12th November 2009, determines an application dated 21st August 2009 by the applicant, who appears as 2nd Objector in the main suit. Acting in person, he sought an order directing Mr. Laban Anziya Advocate to furnish him with copies of an ex-parte application allegedly filed for a judgment said to have been made by Ochieng J on 19th June 2008, to enable him amend his application for review of judgment. He also sought the proceedings and judgment of 19th June 2008 and an ex-parte order of 28th October 2008. The judge perused the record and found that no orders were made by Ochieng J on 19th June 2008; the judge first handled the matter on 14th October 2008, when the applicant appeared, conceded non-service of the 3rd defendant and obtained an adjournment of his application dated 18th September 2008 to 28th October 2008. On that date the applicant was absent; Mr. Anziya orally requested dismissal for non-attendance, and Ochieng J dismissed the application dated 18th September 2008 together with an amended application dated 13th October 2008, with costs to the defendants. The court recorded that no written application was before the court that day. The court ordered that the remaining proceedings be typed and certified copies issued upon payment of the required fee. Prayer 2 was refused because no proceedings existed before Ochieng J on 19th June 2008, Anziya having filed no application or documents. The applicant was left at liberty to pursue the remainder of his application, including explaining his non-attendance on 28th October 2008. There was no order as to costs.

Key legal issues

#
01

Existence of the alleged judgment and proceedings of 19th June, 2008

Holding

None existed; the record shows Ochieng J first handled the matter on 14th October, 2008.

Reasoning

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.

p. 2
02

Whether Anziya filed any ex-parte application or documents

Holding

No; Anziya had not filed any application or documents for determination by the court.

Reasoning

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.

p. 3
03

Character of the 28th October, 2008 dismissal and the remedy open to the applicant

Holding

The dismissal was on Anziya's oral request for non-attendance; the applicant may still apply to explain his absence.

Reasoning

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.

p. 3
04

Entitlement to supply of proceedings and certified copies

Holding

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.

Reasoning

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.

p. 3

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. 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. 2.Prayer 2 of the application dated 21st August, 2009 not granted, there being no proceedings before Justice Ochieng on 19th June, 2008.
  3. 3.The applicant is at liberty to make an application explaining his non-attendance on 28th October, 2008.
  4. 4.The applicant is at liberty to execute the remainder of his application.
  5. 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.