[2020] KEHC 1262 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CRIMINAL APPEAL NO. 99 OF 2010

NICHOLAS OTIENO OSIERO................................................................APPELLANT

VERSUS

REPUBLIC...............................................................................................RESPONDENT

(Being an Appeal from judgment of the Senior Resident Magistrate Hon. D. K. Mikoyan

delivered on 26thMarch, 2010 in Nakuru Cr. Case No. 1668 of 2007)

JUDGMENT

1. The Appellant was charged at the Nakuru Law Courts with a one count of attempted robbery and one count of possession of being in possession of narcotic drugs. The Accused Person pleaded not guilty and his trial proceeded to its conclusion. He was convicted on both counts. The Learned Trial Magistrate sentenced him to death with respect to the offence of attempted robbery and held in abeyance the sentence for the offence of possession of narcotic drugs.

2. The Appellant appealed to this Court. Due to a series of unfortunate circumstances, his appeal was not heard for a long time. The Appellant says that his appeal was finally heard sometime in 2016 by Justice Maureen Odero. The Court’s cause list and internal diaries seem to confirm this. However, after the court session the file seem not to have been forwarded to the Learned Judge for judgment writing. All attempts to trace the file have been unsuccessful.

3. Justice Odero left the station in May, 2018. The matter has been mentioned before me or the Deputy Registrar at least eighteen (18) times in the hope that the file – which contained the Lower Court file – would be traced somewhere in the Court precincts. Finally, on 08/07/2020, with the concurrence of the Prosecutor, the Court declared the original file lost. The Court directed that since the Appellant had a copy of the proceedings he had received from the Court, the appeal would proceed on the basis of those proceedings.

4. However, when the matter came up for hearing of the appeal today (07/12/2020), it quickly became obvious that the appeal could not proceed. This is because one of the key grounds of appeal raised is that the Appellant was convicted on a defective charge sheet. However, the charge sheet is no longer available and it is not among the documents found in the batch the Appellant handed over to the Court. The point raised by the Appellant on appeal is not merely flippant: he says that both the charge sheet and the judgment charged him with an offence under section 279(2) of the Penal Code and defined that offence as “attempted robbery with violence.” He also claims that the particulars of the charge could not sustain a charge of attempted robbery even if the section under which he was charged is held as curable.

5. In the circumstances, with the file missing and without a complete copy of the proceedings and materials produced during the trial, the appeal must abort.

6. What, then, should the Court do in the circumstances? I faced a similar situation in James Onyango Nyakoiro v R[2020] eKLR. There I held thus:

However, where there is no suggestion or evidence that the Appellant was in any way involved in the loss of the files, the Court must, as an instance of Article 50(1)(q) of the Constitution, make a determination whether to acquit the Appellant or order a retrial. Our case law has consistently established that the appropriate order is not to quash the conviction since no appeal has been heard and the presumption of innocence of the Appellant has been lost by virtue of a lawful conviction. The Court can only set aside the conviction and sentence and then determine if there should be a re-trial or not. The primary consideration in determining what orders to make are the overriding interests of justice.

7. In the same case, I looked at the circumstances of the case and held that a retrial was warranted. The factors I looked at included the fact that the crime charged was serious with potential impact on the society; coupled with the fact that the victim of the crime had not heard her say in the matter. To balance the rights and justice interests of all the parties, a retrial was the fairest outcome.

8. The same is true in the present case. While it is regrettable that the original file cannot be traced, it is only fair that the Prosecution be given an opportunity to try and prosecute the Appellant given the seriousness of the offence he was convicted of. Apart from the passage of time, there is no other factor that militates against such a re-trial. It seems eminently clear that a re-trial is the order that is more in keeping with the overall interests of justice in this case. If it turns out that the Prosecution does not have the necessary evidence or witnesses in the Court below, then, the Prosecution can seek a withdrawal of the case.

9. Consequently, the orders and directions of the Court are as follows:

a) The conviction entered in Nakuru Chief Magistrate’s Criminal Case No. 1668 of 2007is hereby set aside.

b) The sentenced imposed on the Appellant is hereby consequently set aside.

c) The Appellant shall be released from Prison forthwith and shall, instead, be placed on remand pending his presentation before the Magistrates’ Court for a retrial.

d) The Appellant shall be presented before the Chief Magistrate’s Court, Nakuru on Monday, 14thDecember, 2020 to take plea.

10. The Deputy Registrar is directed to send back a copy of this judgment to the Chief Magistrate’s Court, Nakuru for compliance. It should be re-assigned to any magistrate with competent jurisdiction other than the Learned D. Mikoyan who already heard the matter in its first iteration.

Dated and delivered at Nakuru this 7thday of December, 2020.

........................

JOEL NGUGI

JUDGE