[2008] KEHC 3361 (KLR)
The court found that the loss of the original lower court file could not be attributed to the appellant and that there was no evidence of exhibits produced in the lower court. Since the state did not seek a retrial and the appellant's right to appeal could not be exercised due to the missing record, the court held...
Source-derived case information.
- Citation
- [2008] KEHC 3361 (KLR)
- Parties
- Appellant: Simon Irungu Wanjiku; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 173 of 2005
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- conviction quashed, sentence set aside, appellant to be released unless otherwise lawfully held
- Judges
- MM Kasango, MSA Makhandia
- Legal Topics
- Lost Court Record, Right of Appeal, Quashing Conviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Irungu Wanjiku
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the conviction can be sustained where the original lower court record is irretrievably lost.
- 2 Whether the appellant should be released due to the inability to proceed with the appeal because of the missing file.
Ratio Decidendi
The court found that the loss of the original lower court file could not be attributed to the appellant and that there was no evidence of exhibits produced in the lower court. Since the state did not seek a retrial and the appellant's right to appeal could not be exercised due to the missing record, the court held that the conviction could not be sustained. Accordingly, the conviction was quashed and the sentence set aside, with the appellant ordered to be released unless otherwise lawfully held.
Court Disposition
conviction quashed, sentence set aside, appellant to be released unless otherwise lawfully held
Orders
- The conviction against the appellant is quashed.
- The sentence is set aside.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL APPEAL 173 OF 2005
SIMON IRUNGU WANJIKU…..…………......………………. APPELLANT
VERSUS
REPUBLIC ….…………………………………………….. RESPONDENT
(Being an appeal from the judgment of E.J. Osoro, Senior Resident Magistrate in Chief Magistrate’s Court Criminal Case No. 2436 of 2004 at Nyeri)
JUDGMENT
This appeal was filed on 26th July 2005. On being filed it is reported that the original lower court file at Chief Magistrate’s Court Nyeri has been misplaced. When the matter first appeared before the Hon. Justice Makhandia on 29th May 2007 he ordered that the Executive Officer do appear in court to explain the whereabouts of the file. On 31st May 2007 the Executive Officer appeared before court when he informed the court that concerted efforts had been put in place to try and trace the original court record but to no avail. He said that they had made a search at the archives section but had been unable to trace the file. On
that report being made the appeal was fixed for hearing on 25th February 2008 the absence of the original record notwithstanding. The appellant’s counsel reminded the court that the original lower court record could not be traced. He said that the appellant had been in custody since January 2004. He requested the court to release the appellant who although had a right to appeal could not proceed with the appeal because of the missing lower court file. The state counsel in response said that she conceded to the prayer.The court of appeal in the case ofPIUS MUKABE MULEWA & ANOTHER – V – REPUBLIC CRIMINAL APPEAL NO. 103 of 2001had to consider the appropriate orders that should be made where the court file of the trial court is irretrievably lost and found that:
“……….. that the court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss occurred. Who stands to gain from the loss?”
The loss of the original Lower Court file cannot on the information before court be blamed on the appellant. We are not certain that there were exhibits that were produced
in the Lower Court. The state counsel did not seek the trial of the appellant. In view of that the order that we make is that the conviction against the appellant be and is hereby quashed and his sentence is hereby set aside. The appellant should be set at liberty unless otherwise lawfully held.
Dated and delivered at Nyeri this 30th day April 2008.
MARY KASANGO
JUDGE
M.S.A MAKHANDIA
JUDGE