[2018] KEHC 6985 (KLR)
The court found that the original trial court file for Wajir Criminal Case No. 202 of 2014 could not be traced despite diligent efforts, and that the applicant had not actively pursued the application for review of sentence. In the absence of the trial record, the court could not meaningfully consider the merits of...
Source-derived case information.
- Citation
- [2018] KEHC 6985 (KLR)
- Parties
- Applicant: Samuel Tagasar; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 30 of 2014
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal for Review of Sentence
- Outcome
- application marked as abandoned
- Judges
- GMA Dulu
- Legal Topics
- Unlawful Presence, Review of Sentence, Abandonment of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Tagasar
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application for Leave to Appeal for Review of Sentence
Legal Issues
- 1 Whether the application for review of sentence can proceed in the absence of the original trial court file.
- 2 Whether the application should be marked as abandoned due to lack of pursuit and unavailability of the file.
Ratio Decidendi
The court found that the original trial court file for Wajir Criminal Case No. 202 of 2014 could not be traced despite diligent efforts, and that the applicant had not actively pursued the application for review of sentence. In the absence of the trial record, the court could not meaningfully consider the merits of the application. Furthermore, the applicant and others had likely already served their sentences and been repatriated, rendering the application moot. Accordingly, the court exercised its discretion to mark the application, and all similar applications arising from the same criminal case, as abandoned.
Court Disposition
application marked as abandoned
Orders
- The application and all similar applications arising from Wajir Magistrate’s Criminal Case No. 202 of 2014 are marked as abandoned.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL MISC. APPLICATION CASE NO. 30 OF 2014
SAMUEL TAGASAR…………………………………..APPLICANT
VERSUS
REPUBLIC…………………………………………..RESPONDENT
RULING
1. In this Miscellaneous Application for leave to appeal for review of court sentence filed in the year 2014, every effort has been made to get the original Wajir Magistrate’s trial court file for Wajir Criminal Case No. 202 of 2014, in which several people were charged and convicted of being unlawfully present in Kenya.
2. The latest information from the Senior Clerk Garissa High Court Criminal Registry S. K. Theri is that he received an e-mail from Halima Ahmed – Ag. Executive Assistant Wajir Court that the trial court file had been sent to Garissa by registered post No. 806 of 2015. Mr. Their however stated that when he went to the Garissa Post Office, he was informed that such records must have been destroyed after two years that is in 2017.
3. As such, the trial court file has not been received by this court nor its whereabouts known.
4. The applicant and 28 others were charged in the same case under same file for unlawful presence in Kenya and were sentenced on 9th June, 2014 to pay a fine of Kshs.200,000/= each or to serve two (2) years imprisonment and be repatriated. They must have served sentence by now and repatriated to their home counties.
5. As the trial court file has not been traced. In my view, there is no point in keeping the application alive, as the applicant has not pursued the same.
6. As such, I mark the application and all similar applications arising from Wajir Magistrate’s Criminal Case No. 202 of 2014 as abandoned.
Dated, Signed and Delivered at Garissa this 4th May, 2018.
………………....
GEORGE DULU
JUDGE