[2022] KEHC 17236 (KLR)
The court held that it is unable to determine the appeal due to the absence of typed and legible evidence of key prosecution witnesses (PW1, PW2, and PW3). The handwritten notes of the initial trial magistrate are illegible, and the typed proceedings only cover evidence from PW4 onwards. Since the missing evidence...
Source-derived case information.
- Citation
- [2022] KEHC 17236 (KLR)
- Parties
- Appellant: Daniel Wekesa Wanjala; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 15 of 2018
- Procedural Posture
- Criminal Appeal / Interlocutory Ruling on Record Completeness
- Outcome
- Determination of the appeal held in abeyance pending typing of missing proceedings.
- Judges
- SN Mutuku
- Legal Topics
- Defilement Offence, Appeal Procedure, Record of Proceedings, Evidence Availability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Wekesa Wanjala
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Interlocutory Ruling on Record Completeness
Legal Issues
- 1 Whether the appellate court can determine the appeal in the absence of typed and legible evidence of key prosecution witnesses.
- 2 Whether the non-disclosure or unavailability of evidence of PW1, PW2, and PW3 prejudices the appellant's right to a fair appeal.
Ratio Decidendi
The court held that it is unable to determine the appeal due to the absence of typed and legible evidence of key prosecution witnesses (PW1, PW2, and PW3). The handwritten notes of the initial trial magistrate are illegible, and the typed proceedings only cover evidence from PW4 onwards. Since the missing evidence is material to the appeal and its absence prejudices the appellant's right to a fair appellate process, the court must suspend the determination of the appeal until the missing portions of the record are typed and made available. The court directed that the handwritten evidence be typed by a competent typist and scheduled a mention to confirm compliance.
Court Disposition
Determination of the appeal held in abeyance pending typing of missing proceedings.
Orders
- The appeal is kept in abeyance to allow for the typing of the handwritten evidence recorded by M A Ochieng, SRM.
- The matter shall be mentioned on February 20, 2023 to confirm the status of the typed proceedings.
Full Case Text
Judgment text and source record
21 paragraphs
Wanjala v Republic (Criminal Appeal 15 of 2018) [2022] KEHC 17236 (KLR) (9 November 2022) (Ruling)
Neutral citation: [2022] KEHC 17236 (KLR)
Republic of Kenya
In the High Court at Kajiado
Criminal Appeal 15 of 2018
SN Mutuku, J
November 9, 2022
Between
Daniel Wekesa Wanjala
Appellant
and
Republic
Respondent
Ruling
1. The Appellant, Daniel Wekesa Wanjala, was tried and convicted by the lower court (M Kasera PM) for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. He was sentenced to life imprisonment on August 22, 2017.
2. He is aggrieved by the conviction and sentence and has preferred this appeal. In his written submissions filed on January 10, 2022, he has raised the issue of non-disclosure of the evidence of PW1, PW2 and PW3. This is the issue I wish to address in this ruling.
3. I have read the lower court proceedings. The lower court file SO Criminal Case No 13 of 2015 shows that the case was heard by two different magistrates with several other magistrates mentioning the case. M A Ochieng, SRM, started the trial. The handwriting of this judicial officer is illegible. I am not able to read a word in that handwriting. The second magistrate to handle the trial is M Kasera, PM, who took over the case from PW4 to the defence case and delivered judgment. The typed proceedings captured the evidence of PW4 to the defence but not that of PW1, PW2 and PW3.
4. It has become challenging for this court, sitting on appeal, to determine the appeal due to the gaps in the evidence. The evidence is available in handwriting, which I have stated is illegible. The illegible part of that handwriting is the evidence that is not available for purposes of this appeal and it is the reason why the Appellant is raising the issue I have mentioned above.
5. For the above reasons, this court is not able to determine this appeal until the gaps in the evidence are addressed. This can only be done by having the handwritten evidence received by M A Ochieng typed by a typist who can read and understand it. To enable the court sort out this issue, I will keep the determination of this appeal in abeyance to allow for the typing of the proceedings covered by the said judicial officer.
6. This matter shall be mentioned on February 20, 2023 to allow for the typing. It is so ordered.
DATED, SIGNED AND DELIVERED THIS 9THNOVEMBER, 2022. S. N. MUTUKUJUDGE