Gichamba v CFC Stanbic Bank Ltd

while the Respondent asserted that the matter was dismissed during the Service Week. The uncertainty surrounding the status of the suit prompted the parties to appear before the High Court on several occasions seeking directions regarding the whereabouts and status of the court le. 3. Thereafter, a skeleton le was opened where the Appellant led a Notice of Motion dated 12th November 2015, the subject of this appeal, seeking reconstruction of the court le for reasons that the original le could not be traced. The application was supported by the adavit of Gikandi Ngibuini, sworn on the same day, where it was deponed that he was the advocate having conduct of the matter on behalf of the Appellant, and that the suit that was partly heard by Kasango, J. prior to her transfer from Mombasa had been pending for a considerable period, which necessitated issuance of appropriate directions; that the original court le had been misplaced or lost, and that it was therefore necessary to open a skeleton le; and that, on 5th October 2015, they wrote to the Deputy Registrar seeking assistance in tracing the le. A copy of the letter was annexed. It was contended that, since they were in possession of copies of all the pleadings and documents, it was possible for the original court le to be reconstructed. 4. The application was opposed by the Respondent through a Replying Adavit sworn on 25th April 2023 by Sanjeev Khagram, the advocate having conduct of the matter on behalf of the Respondent, and who deponed that, after the suit was commenced, Judgment was entered ex parte on 28th June 2011; and that, thereafter, the parties engaged in negotiations culminating in a consent recorded before Mwera, J. on 30th November 2012, following which the matter proceeded towards hearing. He stated that the matter was xed for hearing on 2nd April 2014, but that it did not proceed on the court's own motion, and was later xed for pre-trial conference before Kasango, J. on 9th September 2014 when the parties sought additional time to comply with Order 11 of the Civil Procedure Rules. 5. It was further averred that, in 2015, the Judiciary embarked on the "Justice @ Last" initiative aimed at clearing backlog cases, pursuant to which the suit was listed before R. N. Nyakundi, J. on 8th July 2015 for Notice to Show Cause why it should not be dismissed for want of prosecution; that the court adjourned the matter to 22nd July 2015 as counsel for the Appellant sought time to familiarize himself with the le; and that the suit was dismissed for want of prosecution after the Appellant failed to attend court on the material day. 6. The Respondent further contended that the alleged letter to the Deputy Registrar did not bear any court acknowledgment stamp, and that no evidence had been produced demonstrating communication between the Deputy Registrar and the parties conrming that the le was missing; that, if the le had indeed been lost, the Deputy Registrar ought to have issued a certicate conrming its loss together with a recommendation for reconstruction; and that neither the Respondent nor its advocates had ever received any communication from the court conrming that the le had been misplaced or could not be traced, rendering the application premature. 7. It was further deponed that the High Court Registry Operations Manual, set out the procedure for tracing and reconstructing missing court les, and that none of these mandatory procedures had been followed by the Appellant; that subsequent court proceedings demonstrated that the court, through P. J. Otieno, J. on 19th April 2016 and 26th May 2016, had directed the Deputy Registrar to trace the missing record, and that, thereafter, directions were issued by Njoki Mwangi, J. on 27th September 2021, 29th November 2021 and 24th January 2022, requiring the Deputy Registrar to investigate the missing proceedings and returns for 22nd July 2015 so as to ascertain the status of the le. 8. The court proceedings notwithstanding, it was contended that the Appellant’s application amounted to an attempt to revive a suit that had already been dismissed for want of prosecution on 22nd July 2015, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1754/eng@2026-09-25 2

page 2 of 8

and that as no satisfactory explanation had been oered regarding the missing proceedings of 8th July and 22nd July 2015, granting the application would be prejudicial to the Respondent. 9. The application for reconstruction was eventually placed before Kizito Magare, J., who, in a ruling delivered on 19th June 2023, found that the suit had in fact been dismissed on 8th July 2015 during the Service Week presided over by Nyakundi, J. The learned Judge held that the Appellant had failed to attend court to show cause why the suit should not be dismissed, and further found that the Appellant had improperly caused a new le to be opened without following the prescribed procedure for reconstruction of missing court les. In so nding, the court dismissed the application with costs and ordered closure of the le. 10. Aggrieved by the Ruling, the Appellant lodged the present appeal challenging the decision of the High Court. It was contended, inter alia, that the learned Judge was in error in assuming that the case le was one of the les placed before Nyakundi, J. during the Service Week, yet the court itself conrmed that three out of the 304 les listed that day were missing; that the court was in error in sitting on appeal over the earlier decision of Njoki Mwangi, J. dated 27th September 2021 in which that court held that there was no evidence to show that the suit had been dismissed during the Service Week, despite the two Judges being of equal jurisdiction and standing; that the court failed to appreciate that the skeleton le was opened because the original court le was missing; that, in dismissing the application, the Appellant was denied an opportunity to ventilate his case; that the interests of justice and fairness — particularly as guaranteed under Article 50 of the Constitution—required that the Appellant be aorded a hearing on the merits of the case; that the court was in error in casting aspersions on the Appellant without any evidence; that the court demonstrated open bias against the Appellant without any lawful or factual justication; and that the court arrived at a decision that was wholly against the weight of evidence, the law, and the interests of justice. 11. When the appeal came up for hearing on a virtual platform, learned counsel Mr. Gikandi appeared for the Appellant and learned counsel Mr. Ondego appeared for the Respondent. In their written submissions, the Appellant submitted that the High Court was wrong in concluding that Mombasa HCCC No. 150 of 2011 had been dismissed during the Service Week of 8th July 2015; that, although the matter appeared as No. 47 on the dismissal list before Nyakundi, J., there is no record, return, or proceeding showing that the suit was ever dismissed for want of prosecution. Counsel further contended that the High Court wrongly assumed that the le was one of those placed before Nyakundi, J, yet the judge acknowledged that three les out of the 304 listed les were missing; that the Appellant maintained that the missing original le in this case was one of them, which is why a skeleton le was opened and why the Appellant led the application dated 12th November 2015 seeking formal reconstruction. 12. Counsel further submitted that the proceedings—particularly those before J. Otieno, J. and Njoki Mwangi, J.—demonstrated that no evidence had ever been produced to show that the suit had been dismissed. It was argued that the Respondent, who alleged dismissal, bore the burden of proof yet failed to discharge it. 13. Counsel further argued that the trial Judge unfairly cast aspersions on the Appellant by suggesting, without evidence, that he was responsible for the loss of the le yet, custody of court les lies with the registry, and that it was untenable for the court to attribute blame to a litigant who has no access to court records. Counsel emphasised that the Appellant consistently acted in good faith, actively seeking to retrieve the le and, in the alternative, to have it reconstructed so that the matter could be heard on its merits. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1754/eng@2026-09-25 3

page 3 of 8

14. It was also submitted that the statistical analysis relied on by the trial court to conclude that the matter was dismissed was unsupported by evidence. Counsel argued that the Appellant was condemned unheard, contrary to the principles of natural justice and Article 50 of the Constitution; and that the interests of justice favoured reinstatement of the suit, as courts traditionally lean towards sustaining matters for hearing rather than striking them out on the basis of speculative dismissal records. 15. In their written submissions, counsel for the Respondent urged that we dismiss the appeal. It was submitted that the impugned Ruling of the High Court was sound in law, as was the learned Judge’s exercise of judicial discretion; that the Appellant’s application for reconstruction of a court le was brought after an inordinate delay and without compliance with the established administrative and procedural framework governing missing court les, and the failure to discharge the burden of proof that the original court le was missing at the material time; that the trial Judge correctly found, based on the record, that the court le relating to Mombasa HCCC No. 150 of 2011 was available and actively in use as at July 2015 when the suit was dismissed for want of prosecution; and that, therefore, the Appellant’s assertion that the le went missing prior to the dismissal was unsupported by credible evidence. 16. It was further submitted that reconstruction of a court le is primarily an internal administrative process involving the Registry and the Deputy Registrar, and not a matter to be initiated unilaterally by a litigant without adherence to the prescribed procedure; and that no certicate of loss was issued by the Deputy Registrar, and no formal conrmation of loss or evidence was adduced to show that a search was conducted in accordance with the Registry Operations Manual. Consequently, the Appellant’s application was premature, procedurally defective, and rightly dismissed 17. The Respondent also submitted that the Appellant was guilty of indolence, having failed to account for prolonged periods of inactivity in respect of the case between 2011 and 2015, and further failed to show cause why the suit should not have been dismissed; and that the application for reconstruction was a disguised attempt to circumvent lawful dismissal orders and to revive a suit that had been properly dismissed for want of prosecution. 18. In support of the submissions, counsel relied on the case of Abdul Karim Omar vs Stephen Ngunjiri Kithuka [2017] eKLR for the proposition that reconstruction of a missing court le must strictly follow the applicable rules and administrative procedures, and that parties cannot bypass the Registry and Deputy Registrar by moving the court prematurely; and the case of John Ooko vs Attorney General [2012] eKLR for the proposition that loss of a court le does not automatically entitle a party to relief, particularly where the applicant has failed to demonstrate prejudice, or has contributed to delay and procedural non- compliance. 19. The grounds upon which this court can interfere with the exercise of the learned trial Judge’s discretion were set out in United India Insurance Co Ltd, Kenindia Insurance Co Ltd & Oriental Fire & General Insurance Co Ltd vs East African Underwriters (Kenya) Ltd [1985] eKLR as follows: “ The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at rst instance, would or might have given dierent weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: rst, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1754/eng@2026-09-25 4

page 4 of 8

which he should have taken account, or fthly, that his decision, albeit a discretionary one, is plainly wrong.” 20 The central issue falling for determination is whether the learned Judge rightly concluded that Mombasa HCCC No. 150 of 2011 had been dismissed for want of prosecution on 8th July 2015 and, if so, whether the application for reconstruction of the court le was properly dismissed. 21. In addressing the issues, the appropriate place to start is by determining whether the suit in Mombasa HCCC No. 150 of 2011 was at any time dismissed. In answering this question, the learned Judge stated: “ On the relevant date 8/7/2015. It is clear that the cases listed for dismissal were dismissed on 8/7/2015. To pick another day, the returns for that week show that Justice R.N. Nyakundi dealt with merely 304 matters which had been listed. 3 les were missing 34 were given further dates and 256 were dismissed. A total of 11 les had already been dealt with. He dealt with a total of 301. Therefore only 3 les were missing…. 5. This le is listed for dismissal at No. 47 for Justice R.N. Nyakundi for 8/7/2015. There is evidence that the le was one of the zero missing les… 6. Instead of showing cause, the plainti caused another folder to be opened on 23/11/2015 and restarted this matter and given the same number without an order to do so. This edice has been subsisting to date”. 22. As to whether the Record and facts pointed to the conclusions reached by the learned Judge, a careful examination of the Record discloses that, although the matter was listed for dismissal for want of prosecution on 8th July 2015 during the court’s Service Week before Nyakundi, J., no formal dismissal order, or proceedings evidencing such dismissal was produced. So that, the nding that the suit had been dismissed on 8th July 2015 was not established. According to the Appellant’s and the Respondent’s counsel, after the matter was called out on 8th July 2015, counsel for the Appellant sought an adjournment to enable him consult the record, following which the suit was adjourned to 22nd July 2015. However, though the record does not disclose what transpired on that date, it becomes clear that, the matter having been adjourned to 22nd July 2015, it could not have been dismissed on 8th July 2015 as found by the learned Judge. 23. This position is reinforced by the undisputed fact that, in the proceedings before both P. J Otieno, J. and Njoki Mwangi, J., it was observed that no evidence was produced demonstrating that the suit was dismissed during the Service Week. It cannot go unnoticed that, on 14th November 2022, Njoki Mwangi, J. observed: COURT- I do not see any proceedings by Judge Nyakundi to show that this case was dismissed as alleged by defendant’s counsel. The register of high court civil cases does not contain the outcome of the case after it was dealt with by Judge Nyakundi. 24. Whoever alleges must prove. The defendant is under obligation to prove that the case was dismissed. In the absence of that evidence the presumption to be made is that the case was not dismissed”. 25. On this basis, it was a misdirection on the part of the Judge to conclude that the suit was dismissed on 8th July 2015. Such conclusion was founded largely on inference rather than on the judicial record. Further, the matter having been adjourned to 22nd July 2015, there is no evidence of a formal dismissal order or contemporaneous proceedings demonstrating that it was called out and dismissed. So that, https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1754/eng@2026-09-25 5

page 5 of 8

in addition to the learned Judge’s erroneous conclusion that the suit was dismissed on 8th July 2015, nothing is supportive of a dismissal on 22nd July 2015 or at all. 26. We are also not persuaded that the court returns for the 8th July 2015, upon which the learned Judge relied, conclusively pointed to the Appellant’s suit as having been dismissed. Besides indicating that there were no missing les, or 3 missing les, the statistics also indicated that there were 57 les given further dates, 153 were dismissed, and 8 concluded les. But, once again, there is nothing in the statistics that indicated or expressed that Mombasa HCCC No. 150 of 2011 was one of the les that was dismissed. Without any evidence demonstrating that the Appellant’s suit was dismissed, we nd that the learned Judge reached the wrong conclusion in so nding. 27. Since nothing in the record evinced dismissal of the suit, was the Appellant entitled to orders for the reconstruction of the court le? 28. It is an uncontested fact that the original court le could not subsequently be traced despite repeated eorts by the parties and the court registry. It is also not in doubt that the uncertainty surrounding the whereabouts of the original le persisted for several years. 29. But in declining to grant the orders for reconstruction of the le, the learned Judge had this to say: “7. Before a matter is declared lost, the deputy registrar must establish on behalf of the court, that the le is truly lost. This le was not lost. It was dealt with by justice Nyakundi. It is only after that that the le disappeared…. 15. The loss of le immediately after the same was subject of dismissal of the case, it is not out of imagination that the (sic) someone knows what happened to the original le”. 30. An interrogation of the record shows that, after the le disappeared, various eorts were made to trace it. Between 23rd November 2015 and 14th November 2022, both P. J Otieno, J. and Njoki Mwangi, J. issued several orders and summoned the Ocer in Charge of the registry and the Deputy Registrar to court to explain the whereabouts of the lost le, but to no avail. 31. In the case of Muiri Coee Estate vs Kenya Commercial Bank Ltd & another [2014] KECA 271 (KLR), this Court held that: “ The matter before us brings to the fore the peril to justice that is daily presented by systematic weaknesses both in the recording of court proceedings and in the maintenance, security, and preservation of the same. A long-hand, manual recording of proceedings by the concerned judicial ocer as opposed to an independent automated system within built accuracy and integrity safeguards will continue to plague our courts, yet they are, and must remain and be seen to be, courts of record. The importance of the record is self-evident from the very denition of a court of record. The learned Indian author P. Ramanatha Aiyar, in The Major Law Lexican, 4th Ed. 2010 Vol. 2 at pa1611 states that a court of record is:‘a Court where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony … a court that is bound to keep a record of its proceedings … ‘Recordum is a memorial or remembrance in rolls of parchment, of the proceedings and acts https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1754/eng@2026-09-25 6

page 6 of 8

of a court of justice …. But legally records are restricted to the rolls of such only as are courts of record, and not the rolls of inferior courts (Coke, Litt.260a)’ 32. The obligation to keep a record of its acts, proceedings and decisions would then appear to be of the very essence and character of a court of record: “a court of record necessarily requires some duly authorized person to record the proceedings” as was stated in Ex. PARTE CREGG, 6 Fed, Cas. No. 3. 380 2 curt. 98. 33. Historically out in England all courts of record were the King’s Courts, in right of his Crown and Royal dignity. Our courts are the people’s courts under our constitutional set up and the people would have an interest in proper proceedings being kept by and available at the Courts. What courts do especially superior courts, is a matter of record. 34. It is ironical that the record that ought to accurately, faithfully and authoritatively settle any dispute or controversy as to what may have transpired or been said before a court of law is what is here missing with the eect that there is a lack of certitude and the controversy rages unable to be halted by the certain word of the record.” 35. Similarly in this case, the circumstances disclose an unusual situation where not only the parties, but even the court acknowledged the diculties in tracing the original le and, despite the various orders for retrieval, neither the Ocer in Charge nor the Deputy Registrar were in a position to locate it. 36. In the case of Coastland Properties Ltd vs Shah & 2 others (Civil Appeal E011 of 2020) [2025] KECA 277 (KLR), this Court held that: “ …Of signicance to appreciate from the above excerpt, and which cannot be overemphasized, is the importance of an authentic and comprehensive Court record. Without it, a court is in no position to arrive at the justice of the case, since in order to reach a just decision, a court of law ordinarily relies on the pleadings and evidence adduced by the parties to support the pleaded facts.” 37. It is evident that, unless the le was reconstituted, the suit could not proceed to nalization. In instances such as this, a standard and well laid down procedure for reconstitution of court les is set out in High Court Registry manual. 38. On reconstruction of a court le, the court in the case of Mbira vs Makau (Miscellaneous Application 28 of 2023) [2024] KEELC 5413 (KLR) held: “ All said and done, it is clear that an order for reconstruction of a missing court le is consistent with the provisions of Article 48 of the Constitution on the right to access justice. To decline a party from reconstructing a missing le amount to denying a party the opportunity to ventilate his or her/its case which in my view is an aront to the aforementioned provision of the Constitution and more particularly, where it has not been shown that the original le went missing as a result of a mistake on the part of the party making such request… …the reconstruction of lost les is a purely internal and administrative aair to be dealt with strictly by the oce of the Deputy Registrar and the ocial overseeing the custody of the court les”. 39. On the issue of reconstruction of lost les, the High Court of Kenya, Registry Operation Manual, First Edition, Clause 46 sets out guidelines for the reconstruction of court les. It provides that where https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1754/eng@2026-09-25 7

page 7 of 8

a le is missing, the Registry Supervisor is required to check the le movement register to identify the person in whose possession the le was last recorded, and to instruct him or her to trace the le. If the le is not traced, the Registry Supervisor circulates an internal memo to all sta in the Station/Registry asking them to check whether the le is in their possession. If the le is not found within 24 hours, the Supervisor will notify the Deputy Registrar who then initiates a special search. After 14 days, the Deputy Registrar issues a certicate to conrm the loss and recommends the reconstruction of the le. Parties are then informed of the non-availability of the le in writing by the Deputy Registrar with a recommendation for reconstruction. 40. Much as the learned Judge observed, and rightly so, that a le was only considered lost if it was declared to be lost by the Deputy Registrar, the record is clear that even after the Registry Supervisor and the Deputy Registrar failed to trace it, they neither declared it lost nor proposed a reconstruction of the le. 41. It is the clear lapse in adherence to the laid down procedure that compelled the Appellant to le an application for reconstruction of the le. In our view, the administrative failure set out in the Registry Manual occasioned a distinct miscarriage of justice upon the Appellant whose le ought to have been reconstructed so that the suit could proceed to hearing and determination. The right to a fair hearing guaranteed under Article 50 of the Constitution requires that, where uncertainty exists regarding whether a matter was conclusively determined, such doubt ought, where possible, to be resolved in favour of sustaining the suit for determination on its merits. By dismissing the Appellant’s application notwithstanding that the record demonstrated repeated eorts by the parties and the court to trace the original record, but to no avail, we nd that the learned Judge misdirected himself in conclusively nding that the suit had been dismissed for want of prosecution, and in further dismissing the Appellant’s application for reconstitution of the court le. As a consequence, we nd it necessary to interfere with that decision. 42. In sum, the appeal is merited and is hereby allowed. The Ruling of the High Court (Magare, J.) dated 19th June 2023 is hereby set aside and instead substituted therefor an order that the court le in respect of Mombasa Civil Suit No. 150 of 2011 be reconstituted expeditiously and without further delay. Given that the appeal arises from loss of the court le while in the High Court’s custody, we make no orders as to costs. It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 25TH DAY OF SEPTEMBER, 2026. A. K. MURGOR JUDGE OF APPEAL ................................. DR. K. I. LAIBUTA CArb, FCIArb. JUDGE OF APPEAL ................................. G. W. NGENYE-MACHARIA JUDGE OF APPEAL I certify that this is the true copy of the original signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1754/eng@2026-09-25 8

page 8 of 8