[2010] KEHC 1017 (KLR)
The court found that the appellant's right to a fair hearing had been compromised due to the unavailability of both the appeal and lower court files, as well as the police file. In such circumstances, where the record is irretrievably lost and the circumstances of the offence cannot be established, the fairest...
Source-derived case information.
- Citation
- [2010] KEHC 1017 (KLR)
- Parties
- Appellant: Godfrey Ambani; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 14 of 2003
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction quashed, sentence set aside, retrial ordered.
- Legal Topics
- Right to Fair Hearing, Retrial, Robbery With Violence, Custodial Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Godfrey Ambani
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was denied the right to a fair hearing due to the loss of court and police files.
- 2 Whether a retrial should be ordered in the circumstances where the record is unavailable.
Ratio Decidendi
The court found that the appellant's right to a fair hearing had been compromised due to the unavailability of both the appeal and lower court files, as well as the police file. In such circumstances, where the record is irretrievably lost and the circumstances of the offence cannot be established, the fairest course is to quash the conviction and sentence and order a retrial. This ensures that justice is served both to the accused and the public, and upholds the integrity of the criminal justice process.
Court Disposition
Conviction quashed, sentence set aside, retrial ordered.
Orders
- The appellant's conviction is quashed.
- The sentence imposed is set aside.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL APPEAL NO. 14 OF 2003
BETWEEN
GODFREY AMBANI ………………………………………… APPELLANT
VERSUS
REPUBLIC ………………………………….……………….. RESPONDENT
JUDGEMENT
1. This matter has caused me a great deal of anxiety. I say so because I note that on 18. 12. 2009, the Appellant filed an Affidavit stating that he had been denied the right to a fair hearing and his Appeal which was filed on 21. 1.2003 had never been finalized.
2. I took the initiative to try and trace the Appeal file and for strange reasons although in the court register, the Appeal existed, neither the physical file nor a record of the status of the Appeal was indicated. Worse of all, the lower court file was also unavailable. To compound an already bad situation, the learned Senior Principal State Counsel could not avail either his own record of the Appeal or the Police File!
3. On 15. 7.2010, learned Senior Principal State Counsel sought a retrial and I gave him time upto 23. 9.2010 to take instructions and on that day, he reapplied that the matter be retried.
4. I note that from his own submissions, the Appellant was sentenced to death for the offence of robbery with violence. He stated that he had been in custody since the year 2000. The circumstances of the offence are not known to me.
5. Should I order a retrial? That seems to be the fairest of orders to make in the circumstances and therefore I shall quash the Appellant’s conviction, set aside the sentence imposed and order his retrial at Mumias SRM’s Court and on a priority basis.
6. He shall be produced before the SRM Mumias on 7. 10. 2010.
7. Orders accordingly.
Delivered, Dated and Signed at Kakamega this 4th day of October, 2010.
ISAAC LENAOLA
J U D G E