[2018] KEHC 602 (KLR)
The court found that the loss of the original trial court record made it impossible to adjudicate the issues raised in the appeal. There was no evidence that the appellant was responsible for the loss of the record. The appellant had consistently pursued his appeal and had already served more than half of his...
Source-derived case information.
- Citation
- [2018] KEHC 602 (KLR)
- Parties
- Appellant: Richard Kurgat Bunei; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 71 of 2008
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence quashed; appellant set free unless otherwise lawfully held
- Legal Topics
- Defilement Offence, Lost Court Record, Right to Fair Trial, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Kurgat Bunei
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the loss of the original trial court record precludes the hearing and determination of the appellant's appeal.
- 2 Whether the appellant's right to a fair trial was violated due to alleged procedural irregularities during the trial.
- 3 Whether the appellant should benefit from the missing court record in the absence of evidence of his involvement in its loss.
Ratio Decidendi
The court found that the loss of the original trial court record made it impossible to adjudicate the issues raised in the appeal. There was no evidence that the appellant was responsible for the loss of the record. The appellant had consistently pursued his appeal and had already served more than half of his sentence. Applying the principle that the best interest of justice must prevail in such circumstances, and giving the appellant the benefit of doubt, the court allowed the appeal, quashed the conviction and sentence, and ordered the appellant's release unless otherwise lawfully held.
Court Disposition
appeal allowed; conviction and sentence quashed; appellant set free unless otherwise lawfully held
Orders
- The appeal is allowed.
- The conviction is quashed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL APPEAL NO. 71 OF 2008
RICHARD KURGAT BUNEI ....................................................APPELLANT
VERSUS
REPUBLIC ................................................................................RESPONDENT
(An Appeal from the Judgment in Eldoret Criminal Case No. 9703 of 2007 dated 12th September, 2008)
JUDGMENT
According to the scanty information presented to this court, the appellant herein, one Richard Kurgat Bunei was charged tried and convicted in case File No. 9703 of 2007 in the Chief Magistrate’s court Eldoret, for an offence of defilement and sentenced to serve 20 years in prison. This was on 12th September, 2008. On 15th February, 2012 he applied for leave to appeal out of time and had a draft petition of appeal. The said application was unopposed and on 10th May, 2012 was granted.
However the appeal could not be processed further as the original court’s record went missing. It was mentioned several times thereafter, allowing for the search of the file, but in vain.
Probably out of frustration, the appellant filed a Notice of Motion on 10th March 2016 in which he urged the honorable court to compel the Chief Magistrate and the Executive Officer, both of Eldoret Law court, to avail criminal case file No. 9703/2007 for the purpose of hearing of the appeal. The said Notice of Motion was never heard. Eventually following on the issue, the Executive officer, one T.O Mokaya, made a written declaration to the court that the said file could not be traced and is therefore lost.
The appellant had appealed on the grounds that:-
(1) He did not follow the proceedings as he had applied for an interpreter but the request was overlooked.
(2) The language the court clerk used was not appropriate to him.
(3) He was denied witness statements
(4) The trial court was not impartial.
(5) He was not accorded enough time to defend himself
(6) Prosecution witnesses were directed while offering evidence.
The above shows the appellant is questioning quality and fairness of his trial. Such raises triable issues on appeal. However given the scenario, where the record is missing, this court is not in a position to adjudicate on the issues raised. The court is the custodian of court records and can hardly blame others for the loss without blaming itself. Any decision by the court given the scenario is therefore sensitive to other parties who may not have had a hand in the loss of the records. The police investigated the case and found that there was enough evidence against the appellant to warrant him be charged with the said offence. Prosecution agreed with the opinion and effectively prosecuted the case leading to the said conviction and sentence. Though we are aware that mistakes at times are made during trial and corrected on appeal, at times leading to acquittal of the appellant, the opposite also do happen. The tricky question is, who should benefit from the current scenario? There is no evidence that the appellant had a hand in loss of the said records. He claims he was wrongly convicted and sentenced and hence the appeal.
He has consistently followed up on the issue since his appeal on 15th February, 2012. In the case of John Karanja Wainaina –vs- Republic, Criminal case No. 61 of 1993, the court faced with a similar scenario observed that: -
“In such a situation as this, the court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss has occurred. Who occasioned the loss of all the files, is the appellant responsible, should he benefit from his own mischief and illegality if he is. In the final analysis, the paramount consideration must be whether the order prepared to be made is the one which serves the best interest of Justice.”
The appellant herein have served sentence from 12th September, 2008 when he was sentenced and have waited for his appeal to be processed and heard since 15th February, 2012 when he filed it. He has served more than 10 years of the said sentence of 20 years in prison. The appeal if heard would have gone either way. The best interest of justice is to accord him the benefit of doubt and allow the appeal. I have done that. The conviction is therefore quashed and the sentence. He is set free unless otherwise lawfully held.
S. M GITHINJI
JUDGE
DATED, SIGNEDandDELIVEREDatELDORETthis5thday ofDecember, 2018
In the presence of:-
(1) The appellant
(2) Ms. Mumu for State
(3) Mr. Mwelem - Court clerk