M’Mwongera v Chege & 3 others (Miscellaneous Civil Application E37 of 2021) [2022] KEELC 13443 (KLR) (12 October 2022) (Ruling) Neutral citation: [2022] KEELC 13443 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT MERU MISCELLANEOUS CIVIL APPLICATION E37 OF 2021 CK NZILI, J OCTOBER 12, 2022 BETWEEN M’KUNYUA M’MWONGERA ............................................................... APPLICANT AND NJERI CHEGE ................................................................................ 1ST RESPONDENT JOHN KIMANI CHEGE ............................................................... 2ND RESPONDENT RICHARD KAMAU CHEGE ....................................................... 3RD RESPONDENT WANJIRU CHEGE ........................................................................ 4TH RESPONDENT RULING 1. The court is asked to order for the reconstruction of Meru ELC No 35 of 2012 M’Ikunyua M’Mwongera v Njeri wa Chege & 3 others allegedly said to be misplaced. The application is supported by two adavits sworn by Gatari Ringera advocate on the even date and April 26, 2022. 2. The grounds are that the suit was heard and determined on June 26, 2013 and that the decree cannot be executed for lack of the original court le. 3. The applicant has attached copies of the pleadings, the judgment, a register from Tigania law courts and various correspondence seeking for updates about the court le. 4. The respondents are opposed to the application through an adavit of Wanjiru Chege, the 4th respondent sworn on June 9, 2022. The grounds of opposition are that they were wrongly sued since they are not the registered owners of the suitland. That the application is an abuse of the court process based on half-truths and lacking merits. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13443/eng@2022-10-12 1
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5. Mr. Gatari Ringera learned counsel for the applicant reiterated that the deputy registrar has not responded to inquiries over the whereabouts of the original court le despite service with the court’s order and that the replying adavit herein does not answer to the application. 6. On their part, the respondents submitted that they were not aware of the suit and wondered how it came about. 7. The guidelines on the manner to handle missing court les are contained at Pages 32-34 of the High Court Registry Operations Manual 2nd Edition. 8. In this application, the applicant has attached copies of letters showing the eorts he has made in trying to trace the original court le which have proved unsuccessful. 9. He now invokes the inherent jurisdiction of this court under sections 1A & 1B of the Civil Procedure Act which speak to the just, expeditious, proportionate and aordable resolution of civil disputes. 10. The deputy registrar is required under the manual to issue a certicate to conrm the loss of the original court le and recommend for reconstruction of the le. Even though the applicant says he has initiated the process, there is nothing from the deputy registrar conrming the original le as lost or misplaced. 11. Be that as it may, I have no reason to doubt the applicant. A party should not therefore continue to suer due to non-compliance with the internal mechanisms under the registry manual. 12. I therefore nd it is in the interest of justice to allow the application. The deputy registrar shall proceed to open the skeleton le in line with the registry manual. There will be no order as to costs. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 12TH DAY OF OCTOBER, 2022. In presence of: Gatari Ringera Advocate for applicant Respondents in person C/A: Kananu HON. C.K. NZILI ELC JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13443/eng@2022-10-12 2
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