[2019] KEHC 9682 (KLR)
The court found that the original trial record was irretrievably missing despite diligent efforts to trace it, and there was no evidence implicating the appellant in its disappearance. As a result, the appellant was unable to exercise his right of appeal, which is a fundamental right. The court held that in such...
Source-derived case information.
- Citation
- [2019] KEHC 9682 (KLR)
- Parties
- Appellant: Samwel Kinyama; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 98 of 2013
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; conviction and sentence quashed
- Judges
- DAS Majanja
- Legal Topics
- Missing Trial Record, Right of Appeal, Interests of Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samwel Kinyama
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction and sentence can stand where the original trial record is missing and the appellant is unable to prosecute his appeal.
- 2 Whether the interests of justice require the conviction to be quashed in the absence of the trial record.
Ratio Decidendi
The court found that the original trial record was irretrievably missing despite diligent efforts to trace it, and there was no evidence implicating the appellant in its disappearance. As a result, the appellant was unable to exercise his right of appeal, which is a fundamental right. The court held that in such circumstances, and considering that the appellant had already served three-quarters of his sentence, the interests of justice required that the conviction and sentence be quashed. The court emphasized that the loss of the record, not attributable to the appellant, deprived him of the ability to challenge his conviction, and thus, the only just outcome was to allow the appeal and...
Court Disposition
appeal allowed; conviction and sentence quashed
Orders
- The conviction and sentence are quashed.
- The appellant is set free unless otherwise lawfully held on a separate warrant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CORAM: MAJANJA J.
CRIMINAL APPEAL NO. 98 OF 2013
SAMWEL KINYAMA.............APPELLANT
VERSUS
REPUBLIC............................RESPONDENT
(Appeal from the original conviction and sentence of Hon. Bildad Ochieng’ – CM dated 31st October 2012 at the Senior Principal Magistrate’s Court at Kilgoris in Criminal Case No. 508 of 2012)
JUDGMENT
1. The only record available to this Court is the committal warrrant showing that the appellant, SAMUEL KINYAMA, was convicted on 31st October 2012 for the offence of committing an unnatural offence contrary to section 162 of the Penal Code (Chapter 63 of the Laws of Kenya) and sentenced to serve 10 years imprisonment. He appealed against conviction and sentence.
2. The issue in this matter is that the court file containing the record of the subordinate court has been missing hence the appellant has been unable to prosecute his appeal. As I understand the general principle governing the exercise of the court’s jurisdiction in such cases is that the court should make an order that meets the interest of justice. In John Ooko Otieno v Republic KSM CA Criminal Appeal No. 137 of 2003 [2008]eKLRthe Court of Appeal, on this issue, observed as follows;
In Pius Mukaba Mulewa and Another v Republic, Court of Appeal Criminal Appeal No. 103 of 2001, this Court, faced with that situation had the following to say:
“What we can take from ZAVER’S case is that the courts must try to hold the scales of justice and in doing so, must consider all the circumstances under which the loss has occurred. Who stands to gain from the loss? Is it merely coincident that both the magistrate’s file and that of the police are lost? Does the available evidence point to anyone as being responsible for the loss? And if so, can such a party be allowed to benefit from a situation of his own making? In final analysis, the question to be answered must be whether the order proposed to be made is the one which serves the best interest of justice. We reject any proposition that in cases where a file has disappeared, and it is not reasonably feasible to order a retrial, an acquittal must follow as a matter of course. After all a person who has been tried or has pleaded guilty before a court with competent jurisdiction and has been convicted by such court has lost the benefit of the presumption of innocence given to him by section 77 (2) (a) of the Constitution and on appeal the burden is on him to show that the court which convicted him did so in error. The loss of the file may deprive him of the ability to discharge that burden, but it by no means follows that he must of necessity be treated as innocent and automatically acquitted. The interest of justice as a whole must be considered.
3. Several efforts have been made to trace the original trial record to enable the appellant mount an appeal and by a letter dated 26th February 2019, the Kilgoris Law Court addressed this Court as follows:-
Reference is made to the above subject matter.
We have tried to trace the original record since last year without success. All records in our Archives were appraised by the Archivists from Supreme Court Nairobi but the file could not be traced.
The only record the Court has is that the accused was sentenced to serve 10 years imprisonment on 31. 10. 2012.
We write to confirm that the original record cannot be traced.
4. I am satisfied that the Court record is now missing and there is no evidence that the appellant has played any role in its disappearance. Since he cannot exercise his undoubted right of appeal and considering that he has served three-quarters of his sentence. I consider that it is in the interests of justice that I allow the appeal.
5. I therefore quash the conviction and sentence. The appellant is set free unless otherwise lawfully held on a separate warrant.
Dated and delivered at Kisii this 27th day of February 2019.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Appellant in person.