[2018] KEHC 7684 (KLR)
The court determined that it could not issue substantive directions or proceed with the hearing of the applicant's Notice of Motion until critical questions regarding the missing original appeal record were answered. The court emphasized the necessity of a thorough investigation into the whereabouts and status of...
Source-derived case information.
- Citation
- [2018] KEHC 7684 (KLR)
- Parties
- Appellant: David Mutuiri Gikeno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 11 of 2006
- Procedural Posture
- Criminal Appeal / Directions on Missing File and Pending Notice of Motion
- Outcome
- Further directions deferred pending investigation; Deputy Registrar to file report within three months.
- Judges
- A Mabeya
- Legal Topics
- Appeal Procedure, Missing Court Record, Retrial Possibility
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Mutuiri Gikeno
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Directions on Missing File and Pending Notice of Motion
Legal Issues
- 1 Whether the original appeal record can be traced or reconstructed for the hearing of the applicant's Notice of Motion.
- 2 Whether the prosecution was served with the original appeal and if a record was prepared and its whereabouts.
- 3 Whether the court can proceed with the appeal in the absence of the original record.
Ratio Decidendi
The court determined that it could not issue substantive directions or proceed with the hearing of the applicant's Notice of Motion until critical questions regarding the missing original appeal record were answered. The court emphasized the necessity of a thorough investigation into the whereabouts and status of the original record, including whether the prosecution was served and if a record was prepared. Only upon resolution of these issues could the court give full directions for the hearing of the pending application. Accordingly, the Deputy Registrar was directed to investigate and report back within three months, liaising with relevant offices as necessary.
Court Disposition
Further directions deferred pending investigation; Deputy Registrar to file report within three months.
Orders
- The Deputy Registrar is directed to thoroughly investigate and file a report in court within three months addressing the questions raised regarding the missing original appeal record.
- The Deputy Registrar should liaise with Meru Main Prison and the Office of the Public Prosecutor, Meru, in conducting the investigations.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL APPEAL NO. 11 OF 2006
DAVID MUTUIRI GIKENO ………………………….. APPELLANT
VERSUS
REPUBLIC ………………………………….……….....REPUBLIC
R U L I N G
1. This file was referred to me on 16th October, 2017 by Gikonyo J for directions. On 4th December, 2017, the court did not make any directions as the Station Archivist was said to be away on leave. The matter was therefore listed for further directions on 20th February, 2018.
2. On that day, the Appellant/Applicant told the court that he has been coming to court since 2003. That he knows nothing about the missing file. Mr. Namiti, Learned Prosecutor stated that he had nothing to state and left it to court.
3. I have considered the entire record. I have noted that there is a detailed report by the head of station of the Nkubu Senior Resident Magistrate’s Court. It is dated 22nd January, 2018. The said report details the effort undertaken by the said court in trying to trace the original record. Further, on record is a letter dated 16th July, 2014 from the Officer in charge of Meru Main Prison addressed to Nkubu Law Courts and copied to this court. In that letter, there is an indication that the applicant had initially lodged an appeal in 2004 but the appeal documents disappeared.
4. The said letter further indicated that the applicant was allowed by this court to again lodge this appeal in 2006. The questions that beg are; what was the original appeal number? Could it be that the original record might have been put in that appeal? What was the fate of that original record? Was the prosecution ever served with the said original appeal? Was a record prepared therefor and if so, where is it? Does the prosecution still have the full record of the police file?
5. In my view, it is only after the foregoing questions are answered in one way or the other that this court can be able to give full directions as to the hearing of the applicant’s Notice of Motion dated 16th October, 2017 that is pending on record.
6. Accordingly, I direct the Deputy Registrar of this court, to thoroughly undertake investigations and file a report in court within three (3) months in answer to the questions paused by the court in paragraph 4 above.Since there is already a detailed report from the Nkubu Law Courts, the Deputy Registrar should liase with both the Meru Main Prison on the contents of the letter dated 16th July, 2014 as well as the Office of the Public Prosecutor, Meru in undertaking the said investigations.
Orders accordingly.
DATED and DELIVERED at Meru this 21st day of March, 2018.
A. MABEYA
JUDGE