[2004] KEHC 1197 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL APPEAL NO. 1342 OF 1999

(From Original Conviction and Sentence in Criminal Case No. 1342 of 1999 of the Chief Magistrate’s Court at Makadara

TIMOTHY MUTUA WAMBUA………………………….APPELLANT

VERSUS

REPUBLIC……………..…………………………………RESPONDENT

JUDGMENT

The appellant, TIMOTHY MUTUA WAMBUA, was convicted for Robbery with Violence, contrary to section 296(2) of the Penal Code. He was then sentenced to suffer death, as by law prescribed.

From the documents on the appeal file, it is apparent that the appellant was convicted on 17th December 1999. The said conviction was handed down in Criminal Case No. 8161 of 1999, which was heard and determined before the Magistrate’s Court at Makadara.

Being dissatisfied with the conviction and sentence, the appellant filed his “Memorandum of Appeal” on 28th December 1999. Thereafter, the Principal Deputy Registrar to the High court wrote to the trial court, asking for the original record of the criminal case. The letters are dated 4th January 2001, 1st August 2000, 28th June 2002, and 8th January 2003.

Notwithstanding all those letters, the record of the proceedings before the lower court has not been made available to this court. Ultimately, this court did send out summons to the Senior Executive Officer, Magistrate’s Court at Makaradara, to attend court, with a view to producing the requisite records. In response to the said summons, Mrs. Onsarigo Nyaboke, the Senior Executive Officer Makadara, appeared before us on 6th October 2004. She notified this court that notwithstanding diligent efforts on the part of her staff, they had failed to locate the records of the proceedings before the Magistrate’s Court.

In the light of that information, the question that now arises, is what should we do. First, we had the appeal set down for hearing. And on the hearing date, the appellant informed the court that he had never received a copy of the record of the proceedings.

The Respondent also notified the court that they had not received a copy of the proceedings. In the circumstances, the appeal cannot be heard on its merits, as the record of the proceedings, cannot be found. Should the Court order a retrial? That was an issue the Court of Appeal dealt with in the case of MWAURA alias KAMANDE & ANOTHER vs. REPUBLIC (Supra). Quoting from its earlier decision in the case of PIUS OLIMA & ANOTHER vs. REPUBLIC C.A. No. 110 of 1991, it observed as follows: -

“Our attention was drawn to authorities that deal with the principles that should be applied when considering whether a retrial should be ordered or not. These are: AHMED SUMAR vs. REPUBLIC 1964 EA 481; MANJI vs. REPUBLIC 1966 EA 343; MUYIMBA & OTHERS vs. UGANDA 1969 EA 433 and MERALI & OTHERS vs. REPUBLIC 1971 EA 221. The principles that emerge are that a retrial may be ordered where the original trial, as was found by the High Court and with which we agree, is defective, if the interest of justice so require and if no prejudice is caused to the accused. Whether an order for retrial should be made ultimately depends on the particulars facts and circumstances of each case.”

From the PIUS OLIMA case (Supra) the three conditions that must exist before an order for retrial can be made are as follows: -

1) The original trial must have been defective.

2) The interest of justice must require it.

3) No prejudice should be caused to the accused.

A fourth one is not a condition but a consideration which is that whether an order for retrial should be made will depend on the particular facts and circumstances of each case.

The next issue to consider is whether a retrial can be ordered if only part of these conditions are met. While answering that question AKIWUMI J.A., in the MWAURA alias KAMANDE case (Supra) observed: “The three conditions that must be satisfied are conjunctive and not disjunctive…”

The three conditions should therefore all be met before an order for retrial can be made.

In the instant case, we cannot say that the original trial was defective. The order for retrial is therefore not open to this court to make in the circumstances of this case.

Drawing from the same MWAURA alias KAMANDEcase (Supra) AKIWUMI JA, concluded, (a conclusion that was accepted by his two brother JJAS), thus: -

“The three conditions that must be satisfied are conjunctive and not disjunctive

and one of them which must be present but which is absent in the Application before us is that the trial in the Superior Court cannot be said to have been defective. For my part, it being impossible to discover the facts of the case because of the absence of a certified record of appeal, the appeal cannot be determined. But since the appeal had not been heard on its merit and the issue now before us is not for the quashing of the conviction of the Appellants, the proper order that should be made is to set aside the conviction of the Appellants by the Superior Court rather than to quash it which could lead to a successful plea of autre fois acquit, and to discharge the Appellants and set them free.”

In this case, this court cannot find that the original trial was defective since, because due to the absence of the entire record of the trial court we cannot discover the facts. It has not been suggested that the Appellant was privy to the loss of the trial Court record. He has been in custody for the last 5 years and 7 months. Efforts were made even by this Court to trace the trial Court records but it bore no fruit. In the circumstances of this case we find that the right order to make is to set aside the judgment of the trial court, discharge the Appellant and set him free. We so order. The judgment of the trial Court is accordingly set aside and the Appellant discharged. We order that he be set free unless he is otherwise lawfully held.

Dated at Nairobi this 4th day of November 2004.

LESIIT

JUDGE

OCHIENG’

Ag. JUDGE