[1] The petitioner is a female adult residing in Mombasa. She filed the Petition dated 10th November 2022 contending that on 11th July 2011, the respondent commenced criminal proceedings against her jointly with others in Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others; and that the case had been pending ever since. She further averred that she sought to have the respondent compelled to have the case dropped pursuant to a brief by the respondent, vide Mombasa High Court Petition No. 38 of 2019: Hadija Mlao Mlingo v Director of Public Prosecutions & others , but the said Petition was dismissed by the Court.
[2] The petitioner further averred that, through a ruling delivered by Hon. Kyambia on 17th January 2017, the court closed the Prosecution’s case on the ground that the Prosecution was not keen on prosecuting the case. The Prosecution, being aggrieved by that decision, proceeded to file Mombasa High Court Criminal Revision No. 3 of 2017 , seeking to have the said orders reviewed.
[3] It was further the contention of the petitioner that she had been following up with the lower court and the respondent to have Anti-Corruption Case No. 10 of 2011 brought to a conclusion but was informed that both the Anti-Corruption Case file and the High Court Criminal Revision file went missing and could not be traced. She added that she wrote several letters to the court seeking for the files to be retrieved urgently without any success.
[4] The petitioner therefore approached the Court for intervention, contending that the delay in the prosecution of Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2021 is not only prejudicial to her, but is also a violation of her constitutional rights under Articles 10 and 50. She also cited Articles 20, 23, 25, 27, 47 and 48 of the Constitution and prayed for the following reliefs:
[a] A declaration that the delay of 11 years in the prosecution of Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others is in violation of her rights to have her trial begin and conclude without unreasonable delay as provided for under Article 50(2)(e) of the Constitution.
[b] An order directing the creation of a skeleton file for Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others.
[c] An order directing the respondent to conclude the prosecution of Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others without any further delay.
[d] In the alternative to prayers [b] and [c] above, the petitioner prayed that the Court be pleased to hold that any further prosecution of the petitioner in Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others is unconstitutional on account of the delay in the trial process.
[e] The costs of the petition.
[f] Such orders or directions as the Court may deem fit to meet the ends of justice.
[5] The Petition was supported by the affidavit of the petitioner, sworn on 10th November 2022. She reiterated the assertions made in her Petition and annexed documents in support thereof. Annexure “HMM-1”, for instance, is a copy of the letter dated 22nd January 2016 by the respondent communicating the opinion that the case against the petitioner be dropped and that the petitioner be treated as a prosecution witness. The petitioner also annexed, among other documents, a copy of the respondent’s letter dated 18th January 2017 in connection with High Court Criminal Revision No. 3 of 2017; a copy of the Judgment of the High Court in Petition No. 38 of 2019 as well as a number of letters written by the petitioner seeking retrieval of Anti-Corruption Case No. 10 of 2011 . She prayed that the orders sought by her in the Petition be granted in the interest of justice and fairness.
[6] The Petition was amended on 16th December 2022 to include two more respondents, namely, the Chief Magistrate’s Court, Mombasa (as 2nd respondent) and the Attorney General as the 3rd respondent. The petitioner thereby made reference to a letter dated 6th December 2021 by the then Presiding Judge, Hon. Mativo, J. , to the petitioner, indicating that the Court was making inquiries about the missing court file and would revert substantively. She contended that she received no response thereafter. By way of alleged violations, the petitioner introduced Articles 35 and 48 of the Constitution in connection with the letter dated 6th December 2021.
[7] The Petition was opposed by the 1st respondent through the Replying Affidavit sworn on 12th May 2023 by Ms. Maureen Anyumba, Prosecution Counsel. Counsel for the 1st respondent furnished the background to the Petition from the perspective of the 1st respondent and deposed that, on the 11th January 2011 the petitioner, together with six others, was charged in Mombasa Anti-Corruption Case No. 10 of 2021 with the offence of willful failure to comply with applicable procurement procedures contrary to Section 45(2)(b) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, 2003 , and that she entered a plea of not guilty.
[8] Counsel further deposed that, following the plea-taking and pre-trial proceedings, the matter was set down for hearing of the Prosecution’s case. She added that during the hearing 11 witnesses testified before the Prosecution’s case was closed by an order of the court on 17th January 2017. She explained that the closure occurred before the last Prosecution witness could take to the stand. Counsel further averred that the 1st respondent was aggrieved by that turn of events and proceeded to file an application for review before Mombasa High Court in Criminal Revision No. 3 of 2017 with a view of having the decision of the trial court interrogated and reviewed to give the Prosecution an opportunity to call all its witnesses and bring its case to a logical conclusion. She added that the review application was still pending by the time she made her deposition.
[9] Counsel for the 1st respondent then set out the chronology of events since the inception of Anti-Corruption Case No. 30 of 2011 at paragraphs 7(i) to (xv) to support her assertion that the 1st respondent ought not to be blamed for the delay in prosecution the case and for the loss of the case file. She posited that the petitioner is merely out to circumvent the criminal proceedings and by extension the cause of justice. She prayed for the dismissal of the Petition with costs to the 1st respondent.
[10] There is no indication that responses were filed by the 2nd or 3rd respondent. The Petition was canvassed by way of written submissions, pursuant to the directions given herein on the 31st January 2023. Accordingly, the petitioner filed written submissions dated 8th January 2023. She proposed the following issues for determination:
[a] Whether her rights as guaranteed by Articles 10, 48 and 50(2)(e) of the Constitution stand violated in sustaining the criminal case, and
[b] Whether the she is entitled to the reliefs sought.
[11] The petitioner made reference to the case of Muslims for Human Rights (MUHURI) & another v Inspector General of Police and 5 others [2015] eKLR for the proposition that Article 10 of the Constitution binds all state organs, state officers, public officers and all persons in the discharge of public functions; while Article 48 guarantees access to justice to all. The authority also discussed the right to fair trial under Article 50(2)(e) of the Constitution, particularly the right to have the trial begin and conclude without unreasonable delay. She further submitted that, in this case, her right to fair hearing and fair administrative action have been violated or threatened with violation for the following reasons:
[a] It took the 1st respondent 5 years to state in the letter dated 17th January 2016 that she ought not to have been charged, but should be treated as a prosecution witness; yet no action was taken by the 1st respondent to terminate the case against her.
[b] In spite of the ruling by Hon Kyambia dated 17th January 2017 blaming the 1st respondent for the delay in prosecuting the criminal case thus ordering the closure of the Prosecution’s case, the 1st respondent proceeded to file Mombasa High Court Criminal Revision No. 3 of 2017 by the 1st respondent.
[c] The fact that both the Anti-Corruption case file and the Criminal Revision file have been missing and cannot be traced.
[12] The petitioner faulted the 1st respondent for the unreasonable delay granted that under Article 157 of the Constitution , the 1st respondent is mandated, in the exercise of his duties, to have regard for the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. She relied on Thuita Mwangi & 2 others v Ethics and Anti-Corruption Commission & 3 others [2013] eKLR, Anthony Murimi Waigwe v Attorney General & 4 others [2020] eKLR and Republic v Director of Public Prosecutions, Ex Parte Kamani , Nairobi Judicial Review Application No. 78 of 2015 to buttress her submissions.
[13] On whether the petitioner is entitled to the reliefs sought, her counsel submitted that, having established that her rights have been violated, she is entitled to the orders sought. Reliance was placed on In re Estate of the Mbuitu Ndegwa (Deceased) [2020] eKLR, Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR and Lalchand Fulchand Shah v Investments & Mortgages Bank Ltd & 5 others [2018] eKLR. The petitioner concluded her submissions by stating that, since the respondents did not file a Response to the Amended Petition, it should be taken as an admission of the facts. She relied on Zulfikar Ali Hassanali & Rustam Hira (suing as the Legal Representative of the late Abdul Karim Hassanally) Nyota Service Station Limited v Westco Kenya Limited & 3 others [2016] eKLR.
[14] Counsel for the 1st respondent filed written submissions dated 5th February 2024. Her submissions were in tandem with the proposals by the petitioner as to the two issues for determination, namely, whether the 1st respondent violated the petitioner’s rights; and whether the petitioner is entitled to the reliefs sought. The 1st respondent was also in agreement with most of the background facts as set out by the petitioner. She however refuted the assertion by the petitioner that the 1st respondent is responsible for delaying the disposal of the criminal case. She urged the point that the 1st respondent, as a party to the criminal case, is equally affected adversely by the delay and is similarly entitled to the right to fair administrative act as envisaged by Article 47 of the Constitution.
[15] In respect of the letter dated 17th January 2016, counsel for the 1st respondent submitted that indeed the letter was an opinion prepared by an officer in the office of the 1st respondent and was therefore subject to review by the Head of Station. She pointed out that the opinion was in no way final in terms of the position taken by the 1st respondent on the issue of the petitioner’s prosecution. Counsel relied on Supreme Court Petition No. 14 of 2014: Communications Commission of Kenya & 5 others v Royal Media Services & 5 others on what constitutes legitimate expectation and submitted that the petitioner was duty bound to provide evidence to prove that the 1st respondent did not meet the expectations required of him under Article 157(11) of the Constitution.
[16] Counsel also cited Section 107(1) and (2) of the Evidence Act, Chapter 80 of the Laws of Kenya, and the case of Wamwere & 5 others v Attorney General (Petitions 26, 34& 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023 to underscore her submission that the evidentiary burden was not properly discharged by the petitioner.
[17] On whether the petitioner is entitled to the reliefs sought, the 1st respondent conceded that the petitioner has, no doubt, been prejudiced by the missing criminal file, but hastened to add that the 1st respondent who has never been heard on his application for review is similarly prejudiced on account of the missing review file. She called upon the Court to award appropriate relief and noted that the administrative steps applicable to such a scenario are yet to be taken by the courts concerned.
[18] In this regard, the 1st respondent made reference to Rule 36 of the High Court (Organization and Administration) (General) Rules, 2016 on the procedure for reconstruction of files and the case of Yeri v Republic (Criminal Miscellaneous Application 78 of 2014 [2021] KEHC 182 (KLR) (3 November 2021) (Ruling). She urged the Court to consider granting an order that is just and equitable upon balancing the interests of the parties and the public.
[19] Having given careful consideration to the Petition, the averments in the parties’ respective affidavits as well as the written submissions filed herein on their behalf by learned counsel, it is common ground that the petitioner is a co-accused in Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011 , in which she was charged with the offence of willful failure to comply with the provisions of the Public Procurement and Disposal Act and the Regulations thereunder following an award of a contract to M/s Willow Limited for the supply of a motor grader.
[20] The parties were further in agreement that upon a ruling being given in the Anti-Corruption, forcing the closure of the Prosecution case, the 1st respondent filed an application for review of the ruling of the trial magistrate dated 17th January 2016, vide Mombasa High Court Criminal Revision No. 3 of 2017. The two matters are yet to be determined because the case files went missing and are yet to be traced to date. Therefore, the two issues for determination are:
[a] Whether the petitioner’s rights as guaranteed by Articles 10, 47 and 50(2)(e) and 48 of the Constitution were violated by the respondents; and,
[b] Whether the petitioner is entitled to the reliefs sought.
[21] It is noteworthy however that a technical point was raised by the 1st respondent as to whether the petitioner exhausted the mechanisms provided for in respect of missing court files. Indeed, Section 28 of the High Court (Organization and Administration) Act, Cap 8C of the Laws of Kenya, stipulates that:
“(1) The Registrar shall maintain a uniform record keeping system in the Court specifying the form, style, storage, maintenance and retrieval of records.
(2) The Chief Justice may make Rules and issue directions to give effect to this section.”
[22] Further to the foregoing, Rule 36 of the High Court (Organization and Administration) (General) Rules, to which the 1st respondent made reference, states:
“Pursuant to section 28 of the Act, the Registrar shall establish and maintain a uniform court record management system to be administered in accordance with the stipulated guidelines and other directions issued by the Chief Justice.
(2)The records management system shall, for purposes of ensuring integrity—
(a)classify cases in a systematic manner;
(b)contain a serialization system;
(c)ensure efficient filing, storage, maintenance and retrieval system;
(d)ensure traceable file movement and bring-up diary system;
(e)ensure safe custody, regular file audit, tracing and reconstruction of missing files; and
(f)provide systems for disposal and destruction of records pursuant to the Records Disposal Act.
(3)Where a file of the Court is reported missing, the Court may, after notifying the parties and allowing a period of fourteen days for its tracing, order for the reconstruction of the file within fourteen days.
(4)A decision of the Court to reconstruct a lost file shall be communicated to all the parties in a matter.
(5)Where a lost file is traced after a new one is reconstructed, the two files shall be consolidated into one.”
[23] The steps aforestated were amplified in In re Estate of the Mbuitu Ndegwa (Deceased) (supra) as follows:
11. If a missing file is missing the Registry will take the following steps:-
a) The Registry Supervisor checks the file movement register to identify the person in whose possession the file was last recorded. The Supervisor instructs him/her to trace the file.
b) If the file is not traced, the Registry Supervisor circulates a Memo to all staff in the station/Registry asking them to check whether the file is in their possession. If the file is not found within 24 hours, the Supervisor will notify the Deputy Registrar.
c) The Deputy Registrar then initiates a special search.
d) If the file is not traced after this first search, the Registry Supervisor writes the words original file missing n pencil on the relevant case register.
e) The Registry Supervisor then enters the details of the missing files which is maintained by the Registry supervisor.
f) After a fruitless search of 14 days the Deputy Registrar issues a certificate to confirm the loss and recommends the reconstruction of the file.
g) Parties are informed of the non-availability of the file in writing by the Deputy Registrar with a recommendation for reconstruction.
h) In the event that a missing file is traced the date of recovery is recorded in the case, register and its availability is communicated to the parties concerned by the Deputy Registrar within 24 hours of its tracing.
i) A certificate confirming the recovery is issued.
j) The file once traced is merged with any skeleton file that may have been opened.
[24] There is no indication that this procedure, provided for compliance by the Registrar and by extension the Deputy Registrars in the respective court registries, was invoked before this Petition was instituted. It is now a cardinal principle that where a dispute resolution mechanism exists outside courts, the same ought to be exhausted before the parties can seek the intervention of the Court. Hence in Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
[25] The principle was reiterated in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution…”
[26] It is on that account that I find the instant Petition premature. Accordingly, while it is my view that the Petition ought to be struck out, it is hereby ordered in the interest of justice that:
[a] The 2nd respondent and the Deputy Registrar of this Court be and are hereby ordered to forthwith commence the process of opening skeleton files in accordance with their respective Registry Manuals to facilitate the expeditious disposal of the two pending matters in respect of which the original files are missing, namely, Mombasa High Court Criminal Revision No. 3 of 2017: and Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others.
[b] The rest of the petitioner’s prayers are premature and are therefore disallowed.
[c] Each party to bear own costs of the Petition.
Orders accordingly
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF MAY 2025
[2] The petitioner further averred that, through a ruling delivered by Hon. Kyambia on 17th January 2017, the court closed the Prosecution’s case on the ground that the Prosecution was not keen on prosecuting the case. The Prosecution, being aggrieved by that decision, proceeded to file Mombasa High Court Criminal Revision No. 3 of 2017 , seeking to have the said orders reviewed.
[3] It was further the contention of the petitioner that she had been following up with the lower court and the respondent to have Anti-Corruption Case No. 10 of 2011 brought to a conclusion but was informed that both the Anti-Corruption Case file and the High Court Criminal Revision file went missing and could not be traced. She added that she wrote several letters to the court seeking for the files to be retrieved urgently without any success.
[4] The petitioner therefore approached the Court for intervention, contending that the delay in the prosecution of Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2021 is not only prejudicial to her, but is also a violation of her constitutional rights under Articles 10 and 50. She also cited Articles 20, 23, 25, 27, 47 and 48 of the Constitution and prayed for the following reliefs:
[a] A declaration that the delay of 11 years in the prosecution of Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others is in violation of her rights to have her trial begin and conclude without unreasonable delay as provided for under Article 50(2)(e) of the Constitution.
[b] An order directing the creation of a skeleton file for Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others.
[c] An order directing the respondent to conclude the prosecution of Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others without any further delay.
[d] In the alternative to prayers [b] and [c] above, the petitioner prayed that the Court be pleased to hold that any further prosecution of the petitioner in Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others is unconstitutional on account of the delay in the trial process.
[e] The costs of the petition.
[f] Such orders or directions as the Court may deem fit to meet the ends of justice.
[5] The Petition was supported by the affidavit of the petitioner, sworn on 10th November 2022. She reiterated the assertions made in her Petition and annexed documents in support thereof. Annexure “HMM-1”, for instance, is a copy of the letter dated 22nd January 2016 by the respondent communicating the opinion that the case against the petitioner be dropped and that the petitioner be treated as a prosecution witness. The petitioner also annexed, among other documents, a copy of the respondent’s letter dated 18th January 2017 in connection with High Court Criminal Revision No. 3 of 2017; a copy of the Judgment of the High Court in Petition No. 38 of 2019 as well as a number of letters written by the petitioner seeking retrieval of Anti-Corruption Case No. 10 of 2011 . She prayed that the orders sought by her in the Petition be granted in the interest of justice and fairness.
[6] The Petition was amended on 16th December 2022 to include two more respondents, namely, the Chief Magistrate’s Court, Mombasa (as 2nd respondent) and the Attorney General as the 3rd respondent. The petitioner thereby made reference to a letter dated 6th December 2021 by the then Presiding Judge, Hon. Mativo, J. , to the petitioner, indicating that the Court was making inquiries about the missing court file and would revert substantively. She contended that she received no response thereafter. By way of alleged violations, the petitioner introduced Articles 35 and 48 of the Constitution in connection with the letter dated 6th December 2021.
[7] The Petition was opposed by the 1st respondent through the Replying Affidavit sworn on 12th May 2023 by Ms. Maureen Anyumba, Prosecution Counsel. Counsel for the 1st respondent furnished the background to the Petition from the perspective of the 1st respondent and deposed that, on the 11th January 2011 the petitioner, together with six others, was charged in Mombasa Anti-Corruption Case No. 10 of 2021 with the offence of willful failure to comply with applicable procurement procedures contrary to Section 45(2)(b) as read with Section 48(1) of the Anti-Corruption and Economic Crimes Act, 2003 , and that she entered a plea of not guilty.
[8] Counsel further deposed that, following the plea-taking and pre-trial proceedings, the matter was set down for hearing of the Prosecution’s case. She added that during the hearing 11 witnesses testified before the Prosecution’s case was closed by an order of the court on 17th January 2017. She explained that the closure occurred before the last Prosecution witness could take to the stand. Counsel further averred that the 1st respondent was aggrieved by that turn of events and proceeded to file an application for review before Mombasa High Court in Criminal Revision No. 3 of 2017 with a view of having the decision of the trial court interrogated and reviewed to give the Prosecution an opportunity to call all its witnesses and bring its case to a logical conclusion. She added that the review application was still pending by the time she made her deposition.
[9] Counsel for the 1st respondent then set out the chronology of events since the inception of Anti-Corruption Case No. 30 of 2011 at paragraphs 7(i) to (xv) to support her assertion that the 1st respondent ought not to be blamed for the delay in prosecution the case and for the loss of the case file. She posited that the petitioner is merely out to circumvent the criminal proceedings and by extension the cause of justice. She prayed for the dismissal of the Petition with costs to the 1st respondent.
[10] There is no indication that responses were filed by the 2nd or 3rd respondent. The Petition was canvassed by way of written submissions, pursuant to the directions given herein on the 31st January 2023. Accordingly, the petitioner filed written submissions dated 8th January 2023. She proposed the following issues for determination:
[a] Whether her rights as guaranteed by Articles 10, 48 and 50(2)(e) of the Constitution stand violated in sustaining the criminal case, and
[b] Whether the she is entitled to the reliefs sought.
[11] The petitioner made reference to the case of Muslims for Human Rights (MUHURI) & another v Inspector General of Police and 5 others [2015] eKLR for the proposition that Article 10 of the Constitution binds all state organs, state officers, public officers and all persons in the discharge of public functions; while Article 48 guarantees access to justice to all. The authority also discussed the right to fair trial under Article 50(2)(e) of the Constitution, particularly the right to have the trial begin and conclude without unreasonable delay. She further submitted that, in this case, her right to fair hearing and fair administrative action have been violated or threatened with violation for the following reasons:
[a] It took the 1st respondent 5 years to state in the letter dated 17th January 2016 that she ought not to have been charged, but should be treated as a prosecution witness; yet no action was taken by the 1st respondent to terminate the case against her.
[b] In spite of the ruling by Hon Kyambia dated 17th January 2017 blaming the 1st respondent for the delay in prosecuting the criminal case thus ordering the closure of the Prosecution’s case, the 1st respondent proceeded to file Mombasa High Court Criminal Revision No. 3 of 2017 by the 1st respondent.
[c] The fact that both the Anti-Corruption case file and the Criminal Revision file have been missing and cannot be traced.
[12] The petitioner faulted the 1st respondent for the unreasonable delay granted that under Article 157 of the Constitution , the 1st respondent is mandated, in the exercise of his duties, to have regard for the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. She relied on Thuita Mwangi & 2 others v Ethics and Anti-Corruption Commission & 3 others [2013] eKLR, Anthony Murimi Waigwe v Attorney General & 4 others [2020] eKLR and Republic v Director of Public Prosecutions, Ex Parte Kamani , Nairobi Judicial Review Application No. 78 of 2015 to buttress her submissions.
[13] On whether the petitioner is entitled to the reliefs sought, her counsel submitted that, having established that her rights have been violated, she is entitled to the orders sought. Reliance was placed on In re Estate of the Mbuitu Ndegwa (Deceased) [2020] eKLR, Bernard Mwikya Mulinge v Director of Public Prosecutions & 3 others [2019] eKLR and Lalchand Fulchand Shah v Investments & Mortgages Bank Ltd & 5 others [2018] eKLR. The petitioner concluded her submissions by stating that, since the respondents did not file a Response to the Amended Petition, it should be taken as an admission of the facts. She relied on Zulfikar Ali Hassanali & Rustam Hira (suing as the Legal Representative of the late Abdul Karim Hassanally) Nyota Service Station Limited v Westco Kenya Limited & 3 others [2016] eKLR.
[14] Counsel for the 1st respondent filed written submissions dated 5th February 2024. Her submissions were in tandem with the proposals by the petitioner as to the two issues for determination, namely, whether the 1st respondent violated the petitioner’s rights; and whether the petitioner is entitled to the reliefs sought. The 1st respondent was also in agreement with most of the background facts as set out by the petitioner. She however refuted the assertion by the petitioner that the 1st respondent is responsible for delaying the disposal of the criminal case. She urged the point that the 1st respondent, as a party to the criminal case, is equally affected adversely by the delay and is similarly entitled to the right to fair administrative act as envisaged by Article 47 of the Constitution.
[15] In respect of the letter dated 17th January 2016, counsel for the 1st respondent submitted that indeed the letter was an opinion prepared by an officer in the office of the 1st respondent and was therefore subject to review by the Head of Station. She pointed out that the opinion was in no way final in terms of the position taken by the 1st respondent on the issue of the petitioner’s prosecution. Counsel relied on Supreme Court Petition No. 14 of 2014: Communications Commission of Kenya & 5 others v Royal Media Services & 5 others on what constitutes legitimate expectation and submitted that the petitioner was duty bound to provide evidence to prove that the 1st respondent did not meet the expectations required of him under Article 157(11) of the Constitution.
[16] Counsel also cited Section 107(1) and (2) of the Evidence Act, Chapter 80 of the Laws of Kenya, and the case of Wamwere & 5 others v Attorney General (Petitions 26, 34& 35 of 2019 (Consolidated)) [2023] KESC 3 (KLR) (Constitutional and Human Rights) (27 January 2023 to underscore her submission that the evidentiary burden was not properly discharged by the petitioner.
[17] On whether the petitioner is entitled to the reliefs sought, the 1st respondent conceded that the petitioner has, no doubt, been prejudiced by the missing criminal file, but hastened to add that the 1st respondent who has never been heard on his application for review is similarly prejudiced on account of the missing review file. She called upon the Court to award appropriate relief and noted that the administrative steps applicable to such a scenario are yet to be taken by the courts concerned.
[18] In this regard, the 1st respondent made reference to Rule 36 of the High Court (Organization and Administration) (General) Rules, 2016 on the procedure for reconstruction of files and the case of Yeri v Republic (Criminal Miscellaneous Application 78 of 2014 [2021] KEHC 182 (KLR) (3 November 2021) (Ruling). She urged the Court to consider granting an order that is just and equitable upon balancing the interests of the parties and the public.
[19] Having given careful consideration to the Petition, the averments in the parties’ respective affidavits as well as the written submissions filed herein on their behalf by learned counsel, it is common ground that the petitioner is a co-accused in Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011 , in which she was charged with the offence of willful failure to comply with the provisions of the Public Procurement and Disposal Act and the Regulations thereunder following an award of a contract to M/s Willow Limited for the supply of a motor grader.
[20] The parties were further in agreement that upon a ruling being given in the Anti-Corruption, forcing the closure of the Prosecution case, the 1st respondent filed an application for review of the ruling of the trial magistrate dated 17th January 2016, vide Mombasa High Court Criminal Revision No. 3 of 2017. The two matters are yet to be determined because the case files went missing and are yet to be traced to date. Therefore, the two issues for determination are:
[a] Whether the petitioner’s rights as guaranteed by Articles 10, 47 and 50(2)(e) and 48 of the Constitution were violated by the respondents; and,
[b] Whether the petitioner is entitled to the reliefs sought.
[21] It is noteworthy however that a technical point was raised by the 1st respondent as to whether the petitioner exhausted the mechanisms provided for in respect of missing court files. Indeed, Section 28 of the High Court (Organization and Administration) Act, Cap 8C of the Laws of Kenya, stipulates that:
“(1) The Registrar shall maintain a uniform record keeping system in the Court specifying the form, style, storage, maintenance and retrieval of records.
(2) The Chief Justice may make Rules and issue directions to give effect to this section.”
[22] Further to the foregoing, Rule 36 of the High Court (Organization and Administration) (General) Rules, to which the 1st respondent made reference, states:
“Pursuant to section 28 of the Act, the Registrar shall establish and maintain a uniform court record management system to be administered in accordance with the stipulated guidelines and other directions issued by the Chief Justice.
(2)The records management system shall, for purposes of ensuring integrity—
(a)classify cases in a systematic manner;
(b)contain a serialization system;
(c)ensure efficient filing, storage, maintenance and retrieval system;
(d)ensure traceable file movement and bring-up diary system;
(e)ensure safe custody, regular file audit, tracing and reconstruction of missing files; and
(f)provide systems for disposal and destruction of records pursuant to the Records Disposal Act.
(3)Where a file of the Court is reported missing, the Court may, after notifying the parties and allowing a period of fourteen days for its tracing, order for the reconstruction of the file within fourteen days.
(4)A decision of the Court to reconstruct a lost file shall be communicated to all the parties in a matter.
(5)Where a lost file is traced after a new one is reconstructed, the two files shall be consolidated into one.”
[23] The steps aforestated were amplified in In re Estate of the Mbuitu Ndegwa (Deceased) (supra) as follows:
11. If a missing file is missing the Registry will take the following steps:-
a) The Registry Supervisor checks the file movement register to identify the person in whose possession the file was last recorded. The Supervisor instructs him/her to trace the file.
b) If the file is not traced, the Registry Supervisor circulates a Memo to all staff in the station/Registry asking them to check whether the file is in their possession. If the file is not found within 24 hours, the Supervisor will notify the Deputy Registrar.
c) The Deputy Registrar then initiates a special search.
d) If the file is not traced after this first search, the Registry Supervisor writes the words original file missing n pencil on the relevant case register.
e) The Registry Supervisor then enters the details of the missing files which is maintained by the Registry supervisor.
f) After a fruitless search of 14 days the Deputy Registrar issues a certificate to confirm the loss and recommends the reconstruction of the file.
g) Parties are informed of the non-availability of the file in writing by the Deputy Registrar with a recommendation for reconstruction.
h) In the event that a missing file is traced the date of recovery is recorded in the case, register and its availability is communicated to the parties concerned by the Deputy Registrar within 24 hours of its tracing.
i) A certificate confirming the recovery is issued.
j) The file once traced is merged with any skeleton file that may have been opened.
[24] There is no indication that this procedure, provided for compliance by the Registrar and by extension the Deputy Registrars in the respective court registries, was invoked before this Petition was instituted. It is now a cardinal principle that where a dispute resolution mechanism exists outside courts, the same ought to be exhausted before the parties can seek the intervention of the Court. Hence in Geoffrey Muthinja Kabiru & Others v Samuel Muguna Henry & 1756 others [2015] eKLR, the Court of Appeal made it clear that:
“It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews…The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is first of all diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. The Ex Parte Applicants argue that this accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.”
[25] The principle was reiterated in William Odhiambo Ramogi & 3 others v Attorney General & 4 others; Muslims for Human Rights & 2 others (Interested Parties) [2020] eKLR, as follows:
“52. The question of exhaustion of administrative remedies arises when a litigant, aggrieved by an agency's action, seeks redress from a Court of law on an action without pursuing available remedies before the agency itself. The exhaustion doctrine serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is, first of all, diligent in the protection of his own interest within the mechanisms in place for resolution outside the Courts. This encourages alternative dispute resolution mechanisms in line with Article 159 of the Constitution…”
[26] It is on that account that I find the instant Petition premature. Accordingly, while it is my view that the Petition ought to be struck out, it is hereby ordered in the interest of justice that:
[a] The 2nd respondent and the Deputy Registrar of this Court be and are hereby ordered to forthwith commence the process of opening skeleton files in accordance with their respective Registry Manuals to facilitate the expeditious disposal of the two pending matters in respect of which the original files are missing, namely, Mombasa High Court Criminal Revision No. 3 of 2017: and Mombasa Chief Magistrate’s Anti-Corruption Case No. 10 of 2011: Republic v Wilberforce Malanga & others.
[b] The rest of the petitioner’s prayers are premature and are therefore disallowed.
[c] Each party to bear own costs of the Petition.
Orders accordingly
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 9TH DAY OF MAY 2025