[2010] KEHC 2192 (KLR)
The court found that the prolonged delay in hearing the appeals, caused by the irretrievable loss of the lower court file, violated the appellants' constitutional right to a fair and expeditious hearing as guaranteed by section 77(1) of the Constitution. Since neither the appellants nor the State were responsible...
Source-derived case information.
- Citation
- [2010] KEHC 2192 (KLR)
- Parties
- Appellant: Francis Ekai Lolepo; Appellant: William Ohiso Obudho; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 27 of 1998
- Procedural Posture
- Criminal Appeal / Ruling on Consolidated Appeals After Missing Lower Court File
- Outcome
- Appeals terminated; convictions and death sentences set aside; appellants released unless otherwise lawfully held.
- Judges
- FN Muchemi
- Legal Topics
- Right to Fair Trial, Expeditious Disposal of Cases, Missing Court Record, Appeal Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Ekai Lolepo
Appellant
William Ohiso Obudho
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Consolidated Appeals After Missing Lower Court File
Legal Issues
- 1 Whether the continued delay in hearing the appeals due to a missing lower court file violates the appellants' constitutional rights.
- 2 Whether the appeals should be terminated and convictions set aside in the absence of the trial record.
Ratio Decidendi
The court found that the prolonged delay in hearing the appeals, caused by the irretrievable loss of the lower court file, violated the appellants' constitutional right to a fair and expeditious hearing as guaranteed by section 77(1) of the Constitution. Since neither the appellants nor the State were responsible for the missing record, and all reasonable efforts to locate it had failed, the court determined that it would be unjust to keep the appeals pending indefinitely. In the interests of justice and to uphold constitutional rights, the court ordered the termination of the appeals, set aside the convictions and death sentences, and directed the release of the appellants unless...
Court Disposition
Appeals terminated; convictions and death sentences set aside; appellants released unless otherwise lawfully held.
Orders
- The appeals are hereby terminated.
- The convictions and death sentences imposed upon the appellants are set aside.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA Criminal Appeal 27 of 1998 & Misc Cr 92 of 2003
(From Original BGM CM Cr. No.2122 of 1997
FRANCIS EKAI LOLEPO..................................................1ST APPELLANT
WILLIAM OHISO OBUDHO............................................2ND APPELLANT
~VRS~ REPUBLIC......................................................................RESPONDENT RULING
Appeals nos. 27 of 1998 and 92 of 2003 were consolidated.The Appellants Francis Ekai Lolepoand William Ohiso Obudho filed separate appeals in the year 1998 and 2003. Numerous applications have been filed by the Appellants asking the court to determine their fate under section 77 (1) of the Constitution of Kenya.This court has mentioned the appeals on several occasions.The Deputy Registrar has reported to us that all efforts to trace the lower court file have been fruitless with the latest written report dated 02/06/2010. In the absence of the relevant record, these appeals cannot be heard.There is no evidence to implicate the Appellants or any of them with any act leading to the disappearance of the lower court file.It is also our conviction that the Deputy Registrar has used due diligence to trace the record but efforts have not born fruit.
The fate of the Appellants were condemned to death sentence has to be decided.Section 77 (1) of the Constitution calls for expeditious disposal of criminal cases.It reads:
"If a person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.”
The appeals have been pending hearing for twelve (12) and seven (7) years respectively.The Constitutional rights of the accused persons for expeditious disposal of their criminalappeal have been violated and continue to be violated.It is not the fault of the court or the State that the record went missing.Neither is it the fault of the Appellants.All these parties would have wanted the appeal to be heard and determined expeditiously.For this reason, we take it as our duty to bring to an end this appeal in the interests of justice.The same cannot be held in abeyance forever.
It is our considered opinion that if the appeals are terminated, this would serve the interests of justice and give the Appellants an opportunity to participate in social – economic development for their own benefit and that of this nation.We hereby order that the appeals be and are hereby terminated.The convictions and death sentences imposed upon the Appellants are hereby set aside since there is not opportunity to test them on appeal.The two Appellants are hereby set at liberty unless otherwise lawfully held.
………………………….………………………….
D. A. ONYANCHAF. N. MUCHEMI
JUDGEJUDGE
Ruling dated and delivered on the 22nd Day of July 2010 in the presence of the Appellants and the State Counsel Mrs letting.
……………………….
F. N. MUCHEMI
JUDGE