1. The Application before court for determination is the Notice of Motion dated 17th November, 2025, expressed to be brought under the provisions of Order 51 Rule 1 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act and all other enabling provisions of the law. It seeks for orders;
a) THAT a skeleton file in respect of MILIMANI CIVIL SUIT NO.395 OF 1997, IKERE GITAU V KAMAU TICHU be constituted
b) THAT the documents annexed to the affidavit herein be accepted as copies of the originals filed in court
c) THAT costs of this application be provided for
2. The grounds upon which the Application is brought are that several attempts have been made at the registry to locate the original file to enable Counsel for the Applicant to take further action as they are under pressure by their clients.
3. The application is supported by the affidavit of Yvonne Atieno Omondi, Advocate, sworn on 17th November, 2025.She avers there is a consent from the previous firm of advocates allowing her firm to come on record for the Applicant in this matter.
4. Counsel further states that the court file in respect of this matter has been missing and has not been traced despite several correspondents to the Deputy Registrar. She therefore urged the court to aloe for the reconstruction of a skeleton file.
5. The Application is opposed. The firm of Njugi BG & Company Advocates filed a Replying affidavit and grounds opposition under protest.
6. Counsel contends that the Applicant has no locus as the litigants are both long deceased and further that a similar application is pending disposal before this very court and hence the instant application is res judicata. He urged the court to dismiss the Notice of Motion with costs. He also attached prove that the parties to this suit are both deceased.
7. I have carefully considered this Application in light of the grounds relied upon, the affidavit evidence and the grounds of opposition.
8. It is admitted that the plaintiff and the defendant in Civil Suit No 395 of 1997 are both dead. The single question that would arise in the circumstances of this case is: Who instructed the firm of Peter & Yvonne LLP to file the instant Application ?The first ground of the application is that the Advocate is under pressure from their clients to locate the file. If the client is admittedly dead then who has given instructions to the Advocates to file this matter?
9. The answer to the above question is no one. It follows therefore that the Advocate has no locus to file this application for want of instructions. Once the client is dead then the Advocates cannot make any steps in the matter without substitution.
10. In the foregoing I find that the application before court is incompetent. The same be and is hereby struck out with no order as to costs.
11. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30th DAY OF JULY, 2026 VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
MS OMONDI FOR THE APPLICANT.
KIMUNYI HB FOR NJUGI FOR THE RESPONDENT.
COURT ASSISTANT: AGGREY.
a) THAT a skeleton file in respect of MILIMANI CIVIL SUIT NO.395 OF 1997, IKERE GITAU V KAMAU TICHU be constituted
b) THAT the documents annexed to the affidavit herein be accepted as copies of the originals filed in court
c) THAT costs of this application be provided for
2. The grounds upon which the Application is brought are that several attempts have been made at the registry to locate the original file to enable Counsel for the Applicant to take further action as they are under pressure by their clients.
3. The application is supported by the affidavit of Yvonne Atieno Omondi, Advocate, sworn on 17th November, 2025.She avers there is a consent from the previous firm of advocates allowing her firm to come on record for the Applicant in this matter.
4. Counsel further states that the court file in respect of this matter has been missing and has not been traced despite several correspondents to the Deputy Registrar. She therefore urged the court to aloe for the reconstruction of a skeleton file.
5. The Application is opposed. The firm of Njugi BG & Company Advocates filed a Replying affidavit and grounds opposition under protest.
6. Counsel contends that the Applicant has no locus as the litigants are both long deceased and further that a similar application is pending disposal before this very court and hence the instant application is res judicata. He urged the court to dismiss the Notice of Motion with costs. He also attached prove that the parties to this suit are both deceased.
7. I have carefully considered this Application in light of the grounds relied upon, the affidavit evidence and the grounds of opposition.
8. It is admitted that the plaintiff and the defendant in Civil Suit No 395 of 1997 are both dead. The single question that would arise in the circumstances of this case is: Who instructed the firm of Peter & Yvonne LLP to file the instant Application ?The first ground of the application is that the Advocate is under pressure from their clients to locate the file. If the client is admittedly dead then who has given instructions to the Advocates to file this matter?
9. The answer to the above question is no one. It follows therefore that the Advocate has no locus to file this application for want of instructions. Once the client is dead then the Advocates cannot make any steps in the matter without substitution.
10. In the foregoing I find that the application before court is incompetent. The same be and is hereby struck out with no order as to costs.
11. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30th DAY OF JULY, 2026 VIRTUALLY, THROUGH THE MICROSOFT TEAMS PLATFORM.
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
MS OMONDI FOR THE APPLICANT.
KIMUNYI HB FOR NJUGI FOR THE RESPONDENT.
COURT ASSISTANT: AGGREY.