[2017] KEHC 3148 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

MISC. CRIMINAL APPLICATION NO. 22 OF 2016

BETWEEN

PETER ODHIAMBO ODHIAMBO ……..……………………..APPLICANT

AND

REPUBLIC ……………………...................................... RESPONDENT

RULING

1. The applicant, PETER ODHIAMBO ODHIAMBO, has been in prison for the last 25 years. From the limited information available, he was convicted and sentenced to death for the offence of murder by Mango J., on 9th March 1992.

2. Although the application is inelegant, this matter is in substance an application for enforcement of fundamental rights and freedoms. The applicant claims that his rights to a fair trial has been violated as he is unable to exercise his right of appeal as the record of the trial court is missing. The right of appeal is one of the components of a fair trial guaranteed under Article 50(2)(q) of the Constitution. It provides that an accused person is entitled, “If convicted, to appeal to, or apply for review by, a higher court as prescribed by law.”

3. Since the matter first came up before me on 19th July 2016, the Deputy Registrar has made efforts to obtain the records for Kisumu High Court Criminal Case No. 8 of 1992 and Kisumu Court of Appeal Criminal Appeal No. 236 of 2006. From the available information provided by the Deputy Registrars of this Court and the Court of Appeal at Kisumu, the following has emerged:

The Notice of Appeal in the matter was sent to and received by the Deputy Registrar –Nairobi and the same was entered into the register as Court of Appeal Criminal Appeal No. 235 of 2006.

The Deputy Registrar, High Court at Kisumu was then required by the rules to compile and forward to the Deputy Registrar – Court of Appeal at Kisumu, Records of Appeal for the appeal to be considered for hearing.

From the available records both in Kisumu and Nairobi Court of Appeal, there is no evidence that Records of Appeal were ever forwarded to the Court of Appeal for purposes of processing the appeal for hearing.

The original court file or record of proceeding and judgment has not be found despite intensive search in the High Court registry and archives.

Further efforts have been made by checking with the office of Deputy Public Prosecutions (DPP) for any helpful information but nothing has come out of it.

Criminal Appeal No. 235 of 2006 has not been determined and the same is still pending for hearing awaiting for the Records of Appeal as per Rule 62(1) of the Court of Appeal Rules.

4. On 25th March 2003, Kwach JA., granted the applicant leave to lodge his appeal out of time in Criminal Application No. Nairobi 49 of 2002 (KSM 18/2002). In that ruling, which is available at www.kenyalaw.org , the learned Judge expressed observed as follows;

This applicant was apparently convicted of murder and sentenced to death around superior court file has not been traced and no one seems to know what really happened and so I have to rely entirely on the account coherent may be due to the length of time he has been in prison. He was arrested in September 1991 after he apparently killed his own mother.

When I asked him to urge his application he simply told me to let him go back home. Since he has filed this motion I had to glean his intention from the bare material on the file. Notwithstanding the disappearance of the court file the applicant has a constitutional right to lodge an appeal against his conviction and sentence. I accordingly allow his application and extend the time for filing an appeal by 30 days from today. To enable the applicant to lodge his appeal, the Deputy Registrar of the superior court at Kisumu, the prison authorities and the Attorney-General’s Chambers are hereby ordered to trace the relevant documents and assist the applicant to lodge his appeal.

5. From the foregoing, it is clear that the subject of this application, that is whether the applicant can pursue his appeal is a matter within the jurisdiction of the Court of Appeal. The High Court has already rendered its judgment and the Court of Appeal has allowed the applicant to exercise his undoubted right of Appeal. Whether his appeal can be determined or not is a matter within the jurisdiction of the Court of Appeal.

6. The unfortunate issue of lost files is by no means new to the Court of Appeal. It has dealt with it as part of its jurisdiction in several cases among them: Francis Ndung’u Wanjau v RepublicCriminal Appeal No. 187 of 2002 (UR), Isaiah Mutuma alias Duncan Muriithi v Republic NRB CA Criminal Appeal No. 49 of 2006 [2013]eKLR, John Ooko Otieno v RepublicKSM CA Criminal Appeal No. 137 of 2002 [2008]eKLR and John Karanja Wainaina v RepublicCriminal Appeal No. 61 of 1993 (UR).

7. The High Court is functus officio as the Court of Appeal is now seized of the matter. I therefore dismiss the application.

8. However, given the nature of the case and the fact that the applicant has been in prison for 25 years waiting for his day in the Court of Appeal, I direct the Deputy Registrar of this Court to liaise with the Deputy Registrar of the Court of Appeal so that that the applicant’s case can be placed before the Court of Appeal as soon as possible for further directions from that court.

DATEDandDELIVEREDatKISUMUthis 11th day of October2017

D.S. MAJANJA

JUDGE

Applicant in person.

Ms Barasa, Prosecution Counsel, instructed by the Office of the Director of Public Prosecutions for the respondent.