[2010] KEHC 2997 (KLR)
The court found that the disappearance of the original trial file, which contained the prosecution's evidence, made it impossible to proceed with the defence hearing or to conclude the trial fairly. Since the police file and witness particulars were still available, the court determined that the only appropriate...
Source-derived case information.
- Citation
- [2010] KEHC 2997 (KLR)
- Parties
- Defendant: Patrick Murunga Khagoli; Defendant: Macharia Wangondu Kariuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 332 of 2010
- Procedural Posture
- Criminal Revision / Judgment on Revision
- Outcome
- Order for retrial; original proceedings set aside.
- Legal Topics
- Robbery With Violence, Handling Stolen Goods, Lost Trial Record, Retrial Order, Judicial Supervision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Murunga Khagoli
Defendant
Macharia Wangondu Kariuki
Defendant
Republic
Respondent
Procedural Posture
Criminal Revision / Judgment on Revision
Legal Issues
- 1 Whether a retrial should be ordered where the original trial record has disappeared and cannot be traced.
- 2 Whether the accused's rights are prejudiced by the loss of the trial file.
Ratio Decidendi
The court found that the disappearance of the original trial file, which contained the prosecution's evidence, made it impossible to proceed with the defence hearing or to conclude the trial fairly. Since the police file and witness particulars were still available, the court determined that the only appropriate course was to order a retrial before a different judicial officer. This would ensure that the accused persons receive a fair trial and that justice is duly administered, as mandated by the Constitution. The court also directed that the retrial proceed expeditiously, given the accused's prolonged custody.
Court Disposition
Order for retrial; original proceedings set aside.
Orders
- The trial of the accused persons shall start afresh before a judicial officer other than Mr. Mikoyan.
- The hearing shall proceed from day to day until completion.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Criminal Revision 332 of 2010
PATRICK MURUNGA KHAGOLI…………………………………………………..1ST ACCUSED
MACHARIA WANGONDU KARIUKI…………………………………………….2ND ACCUSED
VERSUS
REPUBLIC……………………………………………………………………………….RESPONDENT
JUDGMENT ON REVISION
The Accused Persons were charged with the offence of robbery with violence contrary to section 296(2) of the Penal Code and alternative charges of handling stolen goods contrary to section 322(2) of the PC. The matter proceeded to full hearing and the Accused Persons were put to their defence. The defence hearing did not take place because the trial file in which the trial proceedings were recorded is said to have disappeared and has to date not been traced. Circumstances of the disappearance of the file are not clear but in the event two trial magistrates disqualified themselves from further handling the matter. The file has therefore been brought to this court for further directions.
Section 65 of the Constitution of Kenya provides as follows;
“Section 65(1) …
(2) the High court shall have jurisdiction to supervise any civil or criminal proceedings before a subordinate court or court martial and may make such orders issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts.”
In this case as the original file containing the record of evidence of the prosecution witnesses is said to have disappeared and is not traceable despite all efforts to trace it, the appropriate order to make is for the trial of the accused to start afresh. It is noted that the offences were committed on 5th July 2007 at Ngachura Farm in Nakuru District. I observe from the notes made by the Chief Magistrate that the Police File containing a record of investigation is still available and in the circumstances the particulars of the witnesses are also available. I therefore direct that the matter be heard de novobefore any other judicial officer other than Mr. Mikoyan.
As the Accused Persons have been in custody for the last three years I direct that the hearing when commenced should proceed from day to day until completed. The prosecution should therefore line up the witnesses for the matter to proceed as directed. Those are the orders of the court.
Dated, signed and delivered at Nakuru this 21st day of April, 2010
M. J. ANYARA EMUKULE
JUDGE