[2023] KEHC 3485 (KLR)
The High Court determined that it could not proceed to write or deliver judgment in the criminal appeal because the record of appeal was incomplete, specifically lacking a portion of the testimony of PW1. The absence of this material evidence precludes a fair and proper determination of the appeal. The court...
Source-derived case information.
- Citation
- [2023] KEHC 3485 (KLR)
- Parties
- Appellant: Republic; Respondent: Brian Mung’asia; Respondent: Consolata Olumasai Jaluo; Respondent: Loyce Waceke Mwangi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 115 of 2019
- Procedural Posture
- Criminal Appeal / Ruling on Incomplete Record; Judgment Deferred Pending Filing of Complete Record of Appeal
- Outcome
- Judgment deferred; directions issued for filing of complete record of appeal.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Record, Incomplete Transcript, Judgment Deferment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Brian Mung’asia
Respondent
Consolata Olumasai Jaluo
Respondent
Loyce Waceke Mwangi
Respondent
Procedural Posture
Criminal Appeal / Ruling on Incomplete Record; Judgment Deferred Pending Filing of Complete Record of Appeal
Legal Issues
- 1 Whether the High Court can proceed to judgment where the record of appeal is incomplete.
- 2 What steps should be taken when part of the trial record is missing in a criminal appeal.
Ratio Decidendi
The High Court determined that it could not proceed to write or deliver judgment in the criminal appeal because the record of appeal was incomplete, specifically lacking a portion of the testimony of PW1. The absence of this material evidence precludes a fair and proper determination of the appeal. The court therefore directed the Deputy Registrar to ensure that a full or complete record of appeal is filed before the matter can proceed to judgment. This approach upholds the principles of fair trial and due process, ensuring that all relevant evidence is available for appellate review.
Court Disposition
Judgment deferred; directions issued for filing of complete record of appeal.
Orders
- Deputy Registrar to cause a full or complete record of appeal to be filed.
- Matter to be mentioned thereafter for further directions.
Full Case Text
Judgment text and source record
24 paragraphs
Republic v Mung’asia & 2 others (Criminal Appeal 115 of 2019) [2023] KEHC 3485 (KLR) (28 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3485 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Appeal 115 of 2019
WM Musyoka, J
April 28, 2023
Between
Republic
Appellant
and
Brian Mung’asia
1st Respondent
Consolata Olumasai Jaluo
2nd Respondent
Loyce Waceke Mwangi
3rd Respondent
(Appeal from judgment of Hon. B. Ochieng, Chief Magistrate, in Kakamega CMCCRC No. 2885 of 2014, of 15th August 2019)
Ruling
1. In the course of preparing judgment in this matter, it transpired that the record is missing part of the testimony of PW1, when he testified on January 14, 2015. Only a part of it appears on pages 21 and 22 of the record of appeal. The portion bearing his name and introduction is missing.
2. I am unable to complete writing judgment in the matter in the circumstances.
3. Let the Deputy Registrar cause a full or complete record of appeal to be filed.
4. The matter shall be mentioned thereafter. The judgment may be written or prepared by any of the Judges at the High Court at Kakamega.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS……………28TH………….DAY OF ……………APRIL…………..………… 2023W MUSYOKAJUDGEMr Erick Zalo, Court Assistant.AppearancesMs. Kagai, instructed by the Director of Public Prosecutions, for the appellant.Mr. Munyendo, Advocate for the respondents.