Elijah Ondego Ayieye v Mini Bakeries (Msa) Limited

Elrc Appeal No. E232 Of 2025 the documents he annexed and to keep the reconstructed file under lock and key. 2. The learned magistrate did not deal with the reconstruction. He held instead that the court lacked jurisdiction to entertain the suit by reason of the Work Injury Benefits Act, and struck the suit out, “if it had not been struck out already”. That is the ruling appealed against. B. BACKGROUND (a) The application and the response 3. The motion was brought under section 3A of the Civil Procedure Act. It rested on three grounds: that the suit was instituted on 5th December 2017; that it was last in court on 27th February 2023 for a ruling; and that since then the court file could not be traced. In his supporting affidavit the Appellant annexed, as “EOA-1”, a Certificate Confirming Loss of File issued at the Chief Magistrate’s Court, Mombasa. In it the in-charge of the civil registry certified that efforts to trace the file had not been successful, and the Court Administrator requested that the reconstruction of the file be authorised. As “EOA-2” he annexed copies of the pleadings. 2

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Elrc Appeal No. E232 Of 2025 The record also contains a letter from his advocates dated 13th November 2024 to the Executive Officer. The letter asks for help in tracing the file and was copied to the Respondent’s advocates. 4. The Respondent opposed the motion through a replying affidavit sworn on 30th June 2025 by its advocate, Mr. Christopher K. Kamau. The deponent said the following. The Respondent had filed a notice of preliminary objection, contending that the claim, being one for a work injury, lay before the Director of Occupational Safety and Health Services. On 27th February 2023 the court delivered a ruling on that objection and struck out the suit for want of jurisdiction, and the court thereby became functus officio. The matter having ended, his firm closed its file, and “we believe that the court file too suffered the same fate”. Reconstruction would be equity acting in vain. The Appellant was guilty of laches, and he had not shown what he had done to trace the file before the certificate was issued. The affidavit exhibited no copy of the ruling of 27th February 3

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Elrc Appeal No. E232 Of 2025 2023, no order extracted from it, and no proceedings of that day. 5. The motion was canvassed by way of written submissions. (b) The ruling 6. The learned magistrate framed two issues: whether the court had jurisdiction “to entertain the matter in dispute herein”, and whether the file should be reconstructed. He took the first issue first. He relied on Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1 and on section 16 of the Work Injury Benefits Act, and he perused the plaint. He found that the claim fell within that Act and that the court had no jurisdiction over it. He then held: “17. With the above finding, it thus follows that this court lacks jurisdiction to entertain the matter in dispute herein and the suit herein is liable to be struck out; if it had not been struck out already as submitted by learned counsel for the Defendant/Respondent. 18. With the above findings, the other issue as whether this court should order the reconstruction of this file … falls by the wayside and becomes superfluous and this court cannot delve into the same. 19. In the premises, the plaintiff/Applicant’s suit herein, if it had not been struck out already as submitted by learned counsel for the 4

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Elrc Appeal No. E232 Of 2025 Defendant/Respondent, is hereby struck out with costs to the Defendant/Respondent.” C. THE APPEAL 7. The Memorandum of Appeal dated 24th November 2025 sets out seven grounds. In substance, the Appellant faults the learned magistrate for: (i) declining to reconstruct the file and thereby shutting him out of the seat of justice; (ii) holding that the court lacked jurisdiction when there was no ruling on record to that effect, and basing his decision on a ruling that was not before him; (iii) determining contested substantive issues that went beyond the reconstruction of the file; (iv) failing to apply the Judiciary’s registry procedures on lost files and to appreciate that a court file must remain available until it is lawfully destroyed, even after a suit is dismissed; and (v) denying him a fair hearing. (a) The Appellant’s submissions 8. The Appellant submits that the only question before the trial court was whether the lost file should be reconstructed, a question the court plainly had jurisdiction to answer. By turning to the Work Injury Benefits Act, he says, the learned 5

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Elrc Appeal No. E232 Of 2025 magistrate decided an issue nobody had placed before him and granted an order nobody had sought. He relies on Kimithi & 2 others v Muhindi [2021] KECA 672 (KLR), which cites David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] eKLR for the rule that parties are bound by their pleadings. He points to the Records Disposal (Courts) Rules and the registry manual, and argues that a court file must remain in existence, whether or not the case is alive, until it is destroyed in the manner the law prescribes. In supplementary submissions, he says that no ruling of 27th February 2023 was ever exhibited. He also exhibits a cause list of that day which, he says, shows that the matter was one of many old files listed for dismissal for want of prosecution, not for a ruling on jurisdiction. (b) The Respondent’s submissions 9. The Respondent submits that the appeal concerns a discretion that was properly exercised, and it relies on Mbogo v Shah [1968] EA 93. It accepts that a lost file may be reconstructed in appropriate circumstances. Its case is that the suit was struck out for want of jurisdiction on 27th 6

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Elrc Appeal No. E232 Of 2025 February 2023, that the ruling was never appealed, and that the court was therefore functus officio (Telkom Kenya Limited v John Ochanda [2014] eKLR). In its view, reconstruction would be a backdoor revival of a dead suit and a waste of judicial time. It argues that the registry manual cannot confer jurisdiction, that the learned magistrate was entitled, and indeed bound, to consider jurisdiction first under Lillian S, that the Appellant was heard, and that the delay of over two years was unexplained. D. ANALYSIS AND DETERMINATION 10. This being a first appeal, the Court must reconsider the material that was before the trial court and reach its own conclusions, while bearing in mind that it did not see or hear the parties: Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123. The Respondent is right that an appellate court will not lightly interfere with an exercise of discretion. Under Mbogo v Shah, however, it will interfere where the lower court misdirected itself, acted on matters on which it should not have acted, or failed to consider matters it should have considered. The deference also presupposes that the 7

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Elrc Appeal No. E232 Of 2025 discretion was exercised on the question actually before the court. 11. The following issues arise for determination: (i) Whether it was established before the trial court that the suit had been struck out on 27th February 2023. (ii) Whether the learned magistrate could properly determine the question of jurisdiction over the suit, and strike the suit out, on an application for reconstruction of the file. (iii) Whether the doctrine of functus officio barred the application. (iv) Whether the file ought to be reconstructed. (i) Was it established that the suit had been struck out? 12. A careful consideration of the material placed before the trial court shows that the Appellant’s application proceeded on the footing that the suit was still pending and undetermined when the file went untraced. On his account, the suit was last in court on 27th February 2023 for a ruling, and nothing has been heard of the file since. The Respondent put forward a different account: that on that day the court struck out the 8

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Elrc Appeal No. E232 Of 2025 suit for want of jurisdiction. It was the Respondent that wished the court to believe in the existence of that fact, and under sections 107(1) and 109 of the Evidence Act the burden of proving it lay on the Respondent. 13. The Respondent did not discharge that burden. It exhibited no copy of the ruling, no extracted order, no certified proceedings, no extract from the case tracking system, and no correspondence that referred to the ruling. What it offered was the word of its advocate. The most telling passage of his affidavit is his statement that he “believes” the court file suffered the same fate as his own closed file. That is conjecture. A court file does not close itself because an advocate has closed his. Nothing was placed before the trial court from which the Respondent’s assertion could be verified, let alone preferred to the Appellant’s account. 14. In fairness, the Appellant’s own position has not been consistent. His submissions before the trial court stated that the case tracking system showed that the suit was “dismissed” on 27th February 2023 for want of prosecution. On appeal he has produced a cause list for that day. The 9

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Elrc Appeal No. E232 Of 2025 cause list was not before the trial court, and no leave was sought to adduce it as additional evidence, so I place no reliance on it. A statement in submissions is not evidence either. There are therefore three accounts of what became of the suit: that it is pending, that it was dismissed for want of prosecution, and that it was struck out for want of jurisdiction. None of them is established by a record of the court. That uncertainty is not a reason to refuse reconstruction. It is the strongest reason for ordering it. 15. Paragraph 19 of the ruling shows that the learned magistrate was himself unsure whether the suit had been struck out. He struck the suit out “if it had not been struck out already”, and he used the same qualification in paragraph 17. A court satisfied that the suit had been struck out on 27th February 2023 would have said so, and would have had nothing left to strike out. A court satisfied that the suit was still pending would have had no reason to qualify its order. The conditional form shows that the learned magistrate made no finding on the Respondent’s assertion. On the material before him, he could not have made one. He nonetheless 10

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Elrc Appeal No. E232 Of 2025 made an order that depended on the very fact he had left undetermined. 16. The order is, as a result, uncertain. A court order must be clear on its face so that the parties know where they stand. An order striking out a suit “if it had not been struck out already” does not say whether the suit ended in February 2023 or in November 2025. It also leaves open whether the costs awarded are fresh costs or costs already awarded, and from which decision time to appeal or seek review would run. An order that leaves such questions unanswered cannot be allowed to stand. (ii) Could the learned magistrate determine jurisdiction over the suit on this application? 17. The only matter before the learned magistrate was the motion of 30th April 2025. Its prayers were confined to reconstructing the file and keeping it in safe custody. No party had moved the court to strike out the suit. Whatever became of the preliminary objection, it was not set down for hearing on this occasion, and the Respondent did not ask that it be heard. The Respondent referred to the Work Injury 11

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Elrc Appeal No. E232 Of 2025 Benefits Act in its replying affidavit only as a reason why reconstruction would be futile, that is, equity acting in vain. It did not invite the court to decide the competence of the suit afresh. It could not have done so consistently with its own case, which was that the question had already been decided and that the court was functus officio. A party cannot tell the court that a question has been finally determined and at the same time ask it to determine that question again. The Respondent’s written submissions before the trial court did not argue the Work Injury Benefits Act at all. At paragraph 16 of the ruling the learned magistrate himself noted that an aspect of the question was “not submitted on herein”. 18. It is settled that a court will not determine issues the parties have not placed before it or grant a remedy that has not been applied for. In an adversarial system, the parties set the agenda (David Sironga Ole Tukai, applied in Kimithi). The learned magistrate framed for himself an issue that neither party had framed. He determined it on the plaint alone and granted a relief that neither party had sought. The Appellant 12

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Elrc Appeal No. E232 Of 2025 came to court to have the court’s record restored and left without a suit. He had no notice that the life of his suit was at stake on his own application for reconstruction. He had no opportunity to address the question of jurisdiction, including whether his claim fell within any exception to the regime under the Act. That was a departure from the right to a fair hearing guaranteed by Article 50(1) of the Constitution. 19. Lillian S does not justify this course. The dictum there concerns a court’s jurisdiction over the matter before it, and the matter before the learned magistrate was an application to reconstruct the court’s own record. Every court has authority over its own records by virtue of its inherent power, which section 3A of the Civil Procedure Act preserves. That authority does not depend on whether the court has jurisdiction over the underlying dispute. By treating jurisdiction over the application as the same thing as jurisdiction over the suit, the learned magistrate asked himself the wrong question. Moreover, Lillian S requires a court to decide jurisdiction on the material before it. The material here was a set of pleadings annexed to an 13

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Elrc Appeal No. E232 Of 2025 application, without any record of what had happened in the suit over more than five years, including whether the preliminary objection had been heard and with what result. 20. Two consequences follow, depending on which account of 27th February 2023 is true: (a) If the Respondent’s assertion is true, the court had already heard and determined the question of its jurisdiction, between the same parties and in the same suit. The question could not be heard and determined again. The holding in paragraphs 15 to 19 would be res judicata within the meaning of section 7 of the Civil Procedure Act, a doctrine that applies to issues determined at earlier stages of the same proceedings as much as to separate suits: Uhuru Highway Development Ltd v Central Bank of Kenya & 2 others [1996] eKLR. It would also be the very re-engagement with a decided question that the Respondent’s plea of functus officio forbids. Striking out a suit that had already been struck out would serve no purpose and would lie outside the court’s competence. 14

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Elrc Appeal No. E232 Of 2025 (b) If the assertion is untrue, a pending suit was struck out on an application that did not seek that order, on an issue that had not been joined, and without the plaintiff being heard on it. 21. On either footing, the holding cannot stand. The Respondent is not in a position to defend it: its own case forecloses the first footing, and the law forecloses the second. I should make it clear that I express no view on whether the Magistrate’s Court had jurisdiction to entertain the Appellant’s claim, or on what happened on 27th February 2023. Both questions remain open, to be determined on a proper record in properly constituted proceedings. (iii) Did the doctrine of functus officio bar the application? 22. The Respondent’s central contention is that the court, having struck out the suit, was functus officio, and that reconstruction is a backdoor to revival. The authority it cites, Telkom Kenya Limited v John Ochanda, answers the contention. There the Court of Appeal adopted the Supreme Court’s explanation, in Raila Odinga & 2 others v Independent Electoral and Boundaries Commission & 3 15

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Elrc Appeal No. E232 Of 2025 others [2013] eKLR, that the doctrine does not bar every engagement by a court with a case it has already decided. What it bars is a merit-based decisional re-engagement with the case once final judgment has been entered. 23. A court that has decided a matter, including by holding that it lacks jurisdiction, therefore retains jurisdiction, by statute and under the rules of procedure, to deal with proceedings that follow from and are incidental to its decision. It awards costs, as the learned magistrate did even while holding that he had no jurisdiction. It corrects clerical and arithmetical errors under section 99 of the Civil Procedure Act. It entertains applications for review, for leave to appeal, and for stay pending appeal. It certifies and supplies proceedings for purposes of an appeal, and it taxes costs and enforces its orders on costs. In my view, an application to open a skeleton file in place of a lost one is of the same character. It asks the court to restore the record of what was done, not to revisit anything that was decided. A court that has struck out a suit needs its record in order to extract the order, tax the costs, supply the proceedings for an appeal, and answer the 16

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Elrc Appeal No. E232 Of 2025 kind of dispute that has arisen in this case. The Records Disposal (Courts) Rules, which permit court records to be destroyed only after prescribed periods and upon a prescribed procedure, and even then only if the register contains a sufficient summary of the result, confirm that a court’s record outlives the litigation it records. 24. The doctrine of functus officio therefore does not, and could not, arise on this application. Reconstruction would reopen no decision on the merits. If the suit was struck out, the reconstructed file will reflect that once the ruling is retrieved. Any attempt to revive the suit would then have to be made by a proper application, in which the Respondent could raise every objection open to it, functus officio included. The Respondent is right that the registry manual does not confer jurisdiction, but no conferment was needed. The power to reconstruct is the court’s inherent power over its own record; the manual only prescribes administrative steps by which the loss is confirmed. 17 the

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Elrc Appeal No. E232 Of 2025 (iv) Should the file be reconstructed? 25. Because the learned magistrate held that the question “falls by the wayside”, he did not determine it. Under section 78 of the Civil Procedure Act this Court has the same powers as the trial court, and it may make the order that the trial court ought to have made. 26. The loss of the file is proved. The registry has certified that efforts to trace it were unsuccessful. The Appellant’s advocates wrote to the Executive Officer seeking help in tracing it, and they copied that letter to the Respondent’s advocates. The letter answers the complaint that the Respondent was kept out of the search. The authorities the Respondent relied on before the trial court, Mwambegu v Hinzano & 3 others [2025] KEHC 2366 (KLR), JN Murage & K Juma t/a Murage Juma & Co Advocates v Tumaz & Tumaz Enterprizes Limited [2023] KEHC 4140 (KLR) and Mbira v Makau [2024] KEELC 5413 (KLR), require a party to show by correspondence that the file is lost and that he has asked the court to trace it. That has been shown here. The trial court’s direction that the Appellant “get and upload a proper 18

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Elrc Appeal No. E232 Of 2025 authorization” related to the part of the certificate reserved for the judicial officer. That authorisation is precisely what an order on the motion supplies. 27. The remaining objections do not hold. The motion states its grounds on its face, so the complaint under Order 51 rule 4 of the Civil Procedure Rules is misplaced. The file was lost while in the court’s custody, and its loss cannot be laid at the Appellant’s door. The delay has been explained by the search for the file, and in any event the Respondent has shown no prejudice. The only prejudice it asserts is being made to defend a concluded suit, and reconstruction revives nothing. Nor is the order futile. It will establish on the court’s own record the true status of a suit whose fate the parties dispute. 28. In the circumstances, it accords with justice that a skeleton file be opened. All other proceedings, including the Respondent’s objection to jurisdiction and any question on the effect of whatever took place on 27th February 2023, should be dealt with in that file. 19

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Elrc Appeal No. E232 Of 2025 E. DISPOSITION 29. For these reasons, the appeal succeeds. I make the following orders: (a) The appeal is allowed. (b) 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. (c) In its place, the Notice of Motion dated 30th April 2025 is allowed. The court file in Mombasa CMCC No. 2047 of 2017 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 the reconstructed file shall be kept in safe custody. (d) Efforts to trace the original file shall continue. If it is traced, it shall be merged with the skeleton file. (e) 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 this judgment determines either question. (f) The Appellant shall have the costs of this appeal. 20

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Elrc Appeal No. E232 Of 2025 DATED, SIGNED AND DELIVERED at MOMBASA this 30th day of September 2026. OCHARO KEBIRA JUDGE 21

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