[2024] KEHC 6 (KLR)
The court held that in the absence of the original trial record from the lower court, it could not consider or determine the issues raised in the applicant's Notice of Motion. The record is essential for the appellate process, and without it, the court cannot second-guess or review the trial court's judgment....
Source-derived case information.
- Citation
- [2024] KEHC 6 (KLR)
- Parties
- Applicant: David Orwaru Nyakundi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 37 of 2014
- Procedural Posture
- Miscellaneous Criminal Application / Ruling
- Outcome
- Application dismissed for want of the trial record; file formally closed.
- Judges
- RN Nyakundi
- Legal Topics
- Right of Appeal, Trial Record Availability, Supervisory Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Orwaru Nyakundi
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling
Legal Issues
- 1 Whether the applicant is entitled to the trial record to facilitate the filing of an appeal against conviction and sentence.
- 2 Whether the High Court can consider the application in the absence of the original trial record.
Ratio Decidendi
The court held that in the absence of the original trial record from the lower court, it could not consider or determine the issues raised in the applicant's Notice of Motion. The record is essential for the appellate process, and without it, the court cannot second-guess or review the trial court's judgment. Consequently, the application could not proceed, and the file was marked as formally closed.
Court Disposition
Application dismissed for want of the trial record; file formally closed.
Orders
- Miscellaneous Criminal Application No. 37 of 2014 is marked as formally closed.
Full Case Text
Judgment text and source record
17 paragraphs
Nyakundi v Republic (Miscellaneous Criminal Application 37 of 2014) [2024] KEHC 6 (KLR) (11 January 2024) (Ruling)
Neutral citation: [2024] KEHC 6 (KLR)
Republic of Kenya
In the High Court at Eldoret
Miscellaneous Criminal Application 37 of 2014
RN Nyakundi, J
January 11, 2024
Between
David Orwaru Nyakundi
Applicant
and
Republic
Respondent
Ruling
Coram : Before Justice R. NyakundiMr. Mugun for the State 1. The petitioner filed a Notice of Motion dated 6. 2.2014 expressed Under Art. 50(6) (A) and (B) and 23 (Supervisory and Jurisdiction and Protection of fundamental Rights and Freedom of an Individual High Court Practice and Procedure Rules 2006 and the Inherent Powers of the High Court. Raising grievances on non-availability of the trial record to capacitate him to file an appeal on conviction and sentence arising out of PM’S Court Kapsabet Cr. Case No 1519/2012. The court directed the Deputy Registrar to avail the original record to facilitate considerations of the issues raised in the Notice of Motion. In absence of the record, it is noted the court has no opportunity to second guess the trial court impugned judgement. Of course a court judicature is unlikely to stray into independent research of adjudicative facts without the model of the record as what transpired in the primary proceedings. There is not a new issue for the court to consider save for the structured facts in the Notice of Motion and the affidavit in support. The record review rule helps to define the very nature of an appellate court’s and the appellate process jurisdiction. The most commons message that flows from the record aids the court in its consideration of the case on matters raised in the Notice of Motion. That is not the case in the instant motion.
2. In light of the above, the Misc. File No. 37 of 2014 be marked as formally closed.
DATED, SIGNED AND DELIVERED AT ELDORET THIS 11TH DAY OF JANUARY 2024. ...................R. NYAKUNDIJUDGE