Republic v Director of Public Prosecutions; Kang’ethe & 3 others (Exparte); Commercial Bank of Africa Limited (Interested Party) [2022] KEHC 18106 (KLR)

Republic v Director of Public Prosecutions; Kang’ethe & 3 others (Exparte); Commercial Bank of Africa Limited (Interested Party) (Application 429 of 2016) [2022] KEHC 18106 (KLR) (Judicial Review) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 18106 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Application 429 of 2016

J Ngaah, J

October 6, 2022

Between

Republic

Applicant

and

Director Of Public Prosecutions

Respondent

and

Patrick Njuguna Kang’ethe

Exparte

Edward Njuguna Kang’ethe

Exparte

George James Kang’ethe

Exparte

Margaret Wambui Kang’ethe

Exparte

and

Commercial Bank Of Africa Limited

Interested Party

Ruling

1This is the second ruling I am making on the application before court. The first ruling was in respect of several notices of preliminary objection against the application. For reasons I gave in my ruling rendered on September 24, 2021, I overruled the objections and, therefore, the respondent’s application proceeded to hearing. This ruling is the determination of the application on its merits.

2The application is by way of a motion dated 28 April 2021; it is filed under article 22(1)(2)(3), 23,35,48,50 and 159 of the Constitution, sections 1A, 1B and 3A of the Civil Procedure Act, cap. 21 and Order 53 of the Civil Procedure Rules. The prayers in the motion have been framed as follows:“1. That this honourable court make orders for the retrieval of the proceedings in regard to judicial review case no. 429 of 2016 for purposes of filing an appeal in respect to the judgment issued on October 10, 2017 by Justice GV Odunga within 7 days of the date of issue of this order.2. That in the absence of non-compliance of the above proceedings, the honourable court be pleased to issue an order to have judicial review case no 429 of 2016 heard afresh or start de-novo.3. That after reconstruction the (sic) file, the same be placed in the custody of the deputy registrar or kept in a strong room for safe custody.4. That this honourable court do issue any other orders that it deems fit and just to grant in the circumstances in the interest of justice.”

3The application has been opposed by the ex parte applicants of whom the 3rd applicant has not only filed a replying affidavit but together with the 2nd applicant they have filed grounds of objection as well.

4On their part the 1st, 4th and 5th respondents filed replying affidavits and notices of preliminary objection which, as noted, have been disposed of.

5The interested party filed a replying affidavit from which I gather, it neither opposes nor supports the motion; it has simply stated the facts of banking transactions between it and the ex parte applicants as directors of three companies that apparently created a charge over certain immovable properties offered as securities for a loan of close to half a billion shillings.

6The undisputed facts are that sometimes in the year 2016, the ex parte applicants were charged in the Chief Magistrates Court at Nairobi with various offences defined in the penal code, cap 63. These offences included conspiracy to defraud, forgery of documents and obtaining credit by false pretence contrary to various provisions of the penal code.

7The ex parte applicants initiated judicial review proceedings in this Honourable Court challenging their prosecution. They succeeded in their bid because on July 24, 2017 Odunga, J. determined the suit in their favour. To be precise, the learned judge quashed the charges and also issued an order of prohibition prohibiting their prosecution.

8The respondent was dissatisfied with this decision and so, he moved swiftly and filed a notice of appeal obviously intending to challenge this court’s decision at the Court of Appeal. However, he could not go further in that direction because the original court file disappeared, apparently, immediately after the delivery of the judgment. In the absence of this court’s record, he has been unable to file the record of appeal and prosecute his appeal against the decision of this honourable court.

9It is for this reason that the respondent has moved this court to reconstruct the court record or to have the case heard de novo.

10My reading of the applicants’ response to the respondent’s application is that their opposition is two-fold; first, that the deputy registrar has not declared or certified the original court file to have been lost, and second, the court is functus officio and cannot purport to hear the applicants afresh.

11As I stated in my ruling on the preliminary objections, the applications for reconstruction of missing files would ordinarily be allowed and in most cases, parties in matters where files are lost will, more often than not, consent to the order for reconstruction of the lost files.

12At the risk of repeating myself, I must state that it is rare and indeed somewhat weird that a party would oppose the reconstruction of a court file when the original file is lost. The logic is, and it is reasonable to assume, that if one has to oppose such an application, then he has an idea of the file’s whereabouts or he has some useful information of where the file can be located.

13But the application before court presents a rather unique scenario. It is made in a matter in which the court had conclusively determined the suit before it. It is an application made in a matter in which, as has been urged by the ex parte applicants, is as good asfunctus officio.

14The record shows that the fact of the disappearance of the court file and whether a new file should be reconstructed or the case heard afresh are questions that have been raised before the learned deputy registrar on several occasions whenever the matter has been mentioned before her. In particular, the matter was before the learned deputy registrar on March 17, 2021, March 31, 2021 and on July 4, 2021. It is on this latter date that the deputy registrar directed that the matter be mentioned before the judge for directions.

15What this suggests is that the learned deputy registrar has all along been aware of the matter in contention, which is that the original court file cannot be found. If she knew where the file was and that she could access it, she would certainly have availed the file and there would have been no need to refer this particular issue to the judge.

16Against this background, there would be nothing wrong by the applicant, or any other party for that matter, moving the court for reconstruction of the court file.

17The reconstruction of the file in these circumstances is not necessarily for the purpose of hearing afresh a suit that has otherwise been determined. The reconstruction is necessary, if not for anything else, for the reason that this honourable court is a court of record and for this reason it is incumbent upon it to be cautious that its proceedings, acts and decisions are all securely preserved on a permanent record.

18No doubt, instances where such a record would be useful are numerous and I need not list them here but one such clear instance is where, as in the respondent’s case, the record is required to prepare a record of appeal.

19I have read the pleadings, the affidavits and submissions filed in opposition to the respondent’s application and I am not convinced that this court cannot or should not order the reconstruction of the court file.

20As I stated in my ruling on the preliminary objections, I am aware that there is no specific provision of law on applications for reconstruction of court files. The law does not contemplate loss of court file and therefore a quest for reconstruction of a court file is, to a greater degree an administrative measure to ensure that an innocent litigant is not impeded from accessing the seat of justice because of failures on the part of the court registry.

21Indeed, it can be validly argued that an order for reconstruction of a missing court file is very much consistent with Article 48 of the Constitution which guarantees the right to access justice. To decline to reconstruct a file where one is missing and therefore deny a party the opportunity to ventilate his case or grievances, for that matter, would be an affront to this particular provision in the Constitution.

22Apart from this constitutional provision, I would add that a reconstruction of a court file in these circumstances is necessary to meet the ends of justice and in the absence of any express provision of the law that supports such an exercise, the court is entitled to invoke its inherent jurisdiction under section 3A of the Civil Procedure Act and order for the reconstruction in deserving cases. This section reads as follows:3A.Saving of inherent powers of court.

23Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

24I am satisfied for reasons I have given, that there is merit in the application for the for the order for reconstruction of the court file in this matter.

25But there is no basis in hearing the case denovo. Such a move would be superfluous and an exercise in futility since the suit has not only been heard and determined but also there exists a judgment which can located on the website of the National Council for Law Reporting also called the Kenya Law website. The decision is reported as Republic versus Director of Public Prosecutions & Another, ex parte Patrick Kangethe Njuguna & 4 Others (2017) eKLR.

26As a matter of fact, the respondent seeks reconstruction of the court file because he has lodged an appeal against this judgment. The Court of Appeal is now seized of the matter, at least in exercise of its appellate jurisdiction.

27As far as the record of proceedings, more particularly the court’s hand written notes are concerned, it is certainly impossible to obtain them for the very reason that the original court file cannot be found. But if the application out of which the judgment appealed against was disposed of by way of written submissions, the hand written notes may turn out to be of little consequence. Those notes may as well be dispensed with for purposes of reconstruction of the missing court file.

28In the ultimate, I allow the respondent’s application and order the court file be reconstructed. To achieve this end, I direct as follows:1. Parties to this suit file or present to the Deputy Registrar of the Judicial Review Division all the pleadings, affidavits and submissions they either filed or were served with in this suit. This shall be done within seven days of the date of this ruling.2. The reconstructed file shall be kept under lock and key or in the strong room.

There shall be no orders as to costs. Orders accordingly.

Signed, dated and delivered on 6 October 2022Ngaah JairusJUDGE3|JR. NO. 429 OF 2016: RULING