[2007] KEHC 2481 (KLR)
The court found that due to the destruction of the original trial court file by fire, it was impossible to confirm the charge, the conviction, or the conduct of the trial. The confusion as to the actual offence for which the appellant was convicted could not be resolved in the absence of the original record....
Source-derived case information.
- Citation
- [2007] KEHC 2481 (KLR)
- Parties
- Appellant: James Muriithi Marete; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 133 of 2003
- Procedural Posture
- Criminal Appeal / Ruling on Appeal
- Outcome
- conviction set aside; appellant discharged
- Legal Topics
- Loss of Trial Record, Conviction Set Aside, Shop Breaking, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muriithi Marete
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Appeal
Legal Issues
- 1 Whether the conviction can stand where the original trial court record is irretrievably lost due to fire.
- 2 Whether the confusion regarding the charge and sentence can be resolved in the absence of the original record.
- 3 Whether it is just to uphold the conviction in the circumstances.
Ratio Decidendi
The court found that due to the destruction of the original trial court file by fire, it was impossible to confirm the charge, the conviction, or the conduct of the trial. The confusion as to the actual offence for which the appellant was convicted could not be resolved in the absence of the original record. Applying the principle that justice must be served and considering that the appellant could not be blamed for the loss of the record, the court held that it would be unjust to uphold the conviction. Accordingly, the conviction was set aside and the appellant was discharged.
Court Disposition
conviction set aside; appellant discharged
Orders
- The conviction against the appellant is hereby set aside.
- The appellant is hereby discharged and is set free unless otherwise lawfully held.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Criminal Appeal 133 of 2003
JAMES MURIITHI MARETE…………..………....…………..………..APPELLANT
versus
REPUBLIC…………………………………………………..………RESPONDENT
(Being appeal from Kerugoya Criminal Case No. 1146 of 2001)
RULING
At Kerugoya Magistrate’s Court a new registry was constructed where all the criminal files were kept. In the year 2004 that registry was gutted down by fire thereby destroying all the criminal files in that court except those that were kept at the Magistrate’s Chambers.
The Appellant in this appeal stated in his grounds of appeal that he was sentenced to three years imprisonment and three strokes for shop breaking. When the State Counsel submitted to the court when this appeal came up for hearing, he stated that the Appellant was convicted for shop breaking. The Appellant in response stated that he was convicted to death. It ought to be noted that the Appellant’s trial original court file was burnt in the aforestated fire. It is not possible to confirm what he was convicted for. Indeed it is not possible to confirm how the trial at the lower court was conducted. On a subsequent date when this matter came up for hearing the State Counsel told the Court that the Appellant was charged for robbery with violence. The cause of the fire to date has never been known. The Appellant certainly cannot be blamed for that fire. The Court of Appeal in the case of PIUS MUKABE MULEWA & ANOTHER -V- REPUBLIC CRIM APP. NO. 103 of 2001 had to consider the appropriate orders that should be made where the court file of the trial court is irretrievably lost and found that:
“……………….that the court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss occurred. Who stands to gain from the loss?”
As stated before there is confusion as to the charge the Appellant faced at the trial court. That confusion cannot be resolved because of the lack of original record. The court too cannot confirm whether the lower court’s trial was wanting in any way. Accordingly it is only just that the conviction against the Appellant be set aside. The orders of this court are that the conviction against the Appellant is hereby set aside. The Appellant is hereby discharged and is hereby set free unless otherwise lawfully held.
Dated and delivered at Nyeri this 30th day of July 2007.
MARY KASANGO
JUDGE