[2023] KEHC 3489 (KLR)
The High Court determined that it could not proceed to prepare or deliver judgment in the criminal appeal because the record of appeal was incomplete. Specifically, the proceedings where Hon. Alego, SPM, took evidence from PW3 and DW1 were missing from the record. The absence of these proceedings rendered the record...
Source-derived case information.
- Citation
- [2023] KEHC 3489 (KLR)
- Parties
- Appellant: David Shikuku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E054 of 2022
- Procedural Posture
- Criminal Appeal / Ruling on Completeness of Record Before Judgment
- Outcome
- Judgment deferred pending completion of the record of appeal.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Record, Incomplete Record, Judgment Preparation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Shikuku
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Completeness of Record Before Judgment
Legal Issues
- 1 Whether the record of appeal is complete for purposes of preparing and delivering judgment.
- 2 Whether the High Court can proceed to judgment in the absence of a complete record of proceedings.
Ratio Decidendi
The High Court determined that it could not proceed to prepare or deliver judgment in the criminal appeal because the record of appeal was incomplete. Specifically, the proceedings where Hon. Alego, SPM, took evidence from PW3 and DW1 were missing from the record. The absence of these proceedings rendered the record insufficient for a proper appellate review. The court directed the Deputy Registrar to ensure the record of appeal is completed before the matter is placed before a judge for judgment-writing. This approach upholds the principles of fair trial and due process, ensuring that both parties have the benefit of a full and accurate record before the appellate court renders its...
Court Disposition
Judgment deferred pending completion of the record of appeal.
Orders
- Deputy Registrar to cause the record of appeal to be completed.
- Matter to be mentioned thereafter for further directions.
Full Case Text
Judgment text and source record
23 paragraphs
Shikuku v Republic (Criminal Appeal E054 of 2022) [2023] KEHC 3489 (KLR) (28 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3489 (KLR)
Republic of Kenya
In the High Court at Kakamega
Criminal Appeal E054 of 2022
WM Musyoka, J
April 28, 2023
Between
David Shikuku
Appellant
and
Republic
Respondent
(Appeal from judgment of Hon. D. Alego, Senior Principal Magistrate (SPM), in Kakamega CMCCRC No. 59 of 2018, of 12th July 2022)
Ruling
1. In the course of preparing judgment in this matter, it transpired that the record of appeal is incomplete.
2. The record of appeal reflects that Hon. TM Mwangi, Senior Principal Magistrate (SPM), heard PW1 and PW2 on September 27, 2018.
3. On July 23, 2019, Hon. Alego, SPM, took over the matter, and directed that it would proceed from where Hon. Mwangi, SPM, left off. After that the record is silent on what transpired.
4. The judgment, that Hon. Alego, SPM, delivered, on July 12, 2022, indicates that Hon. Alego, SPM, after taking over from Hon. Mwangi, SPM, took evidence from PW3 and DW1, on unknown dates. That record is what is missing from the record of appeal.
5. I am unable to prepare judgment in this matter in the circumstances.
6. Let the Deputy Registrar cause the record of appeal to be completed, before the matter if placed before the Judge for judgement-writing.
7. 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 28 TH DAY OF APRIL 2023W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMr. Khayumbi, instructed by JI Khayumbi & Company, Advocates for the appellant.Ms. Kagai, instructed by the Director of Public Prosecutions, for the respondent.