Situma v Republic (Petition E004 of 2025) [2026] KEHC 10402 (KLR) (13 July 2026) (Ruling)

Situma v Republic (Petition E004 of 2025) [2026] KEHC 10402 (KLR) (13 July 2026) (Ruling) Neutral citation: [2026] KEHC 10402 (KLR) Republic of Kenya In the High Court at Kitale Petition E004 of 2025 RK Limo, J July 13, 2026 Between Wilson Simiyu Situma Applicant and Republic Respondent Ruling 1.The applicant herein WILSON SIMIYU SITUMA has moved this court invoking its supervisory jurisdiction under Article 165(6) of the Constitution to give directions over a Criminal Case No.E3600/20 21 pending at Kitale Chief Magistrate’s Court. 2.The applicant’s main grievance is that the court file with respect to the case facing him went missing and has caused delays in the case and delayed justice for him. 3.He further avers that the police file equally went missing. 4.He has sworn an affidavit dated 4/7/2025 where he depones that a skeleton file was opened in the lower court and has attended court ten times with no end in sight. 5.He pleads with this court to intervene and give orders/directions on the best way forward. 6.When this matter was placed before this court on 13/10/2025, this court was told that the trial court’s case was pending for judgment when it strangely disappeared, upon which a skeleton file was opened. 7.This court gave directions for the skeleton file to be availed on 27/1/2025. On that date the lower court file was not availed. The State through the Director of Public Prosecution informed this court that the lower court file as well as the police file had disappeared mysteriously. 8.This court owing to unusual and strange turn of events summoned the DCI Kwanza to explain the whereabouts of the police file. This court further summoned the Court Administrator to also come to court and shade light on what transpired on the court’s end. 9.On 26/2/2026 the Court Administrator Mr Peter Kiarie came to court and told this court on oath that the Criminal Case No.E3600/2021 was handled by the then Court No.1 presided over by Hon Ng’arng’ar (Now a judge of the High Court) and the matter had been heard and had reached a stage for judgment. That the case was fixed for judgment on 8/11/2023 and the date given for judgment was on 22/11/2023. That on 22/11/2023 the Hon Chief Magistrate was on transfer to Kakamega and that when the then Chief Magistrate was collecting files to go and write judgments, file No.E3600/2021 remained because parties had not filed written submissions. That the Chief Magistrate directed the file be taken to the Registry to enable parties file submissions and the file be forwarded to him in Kakamega to write judgment. 10.The Court Administrator stated that on 22/11/2023 the Registry could not trace the file and requested for time to trace it. He stated that they did everything to trace the file but all was in vain and on 24/3/2025, they wrote a letter indicating that the file could not be forwarded to Kakamega because it was missing and that thereafter a skeleton file was opened and the matter had come up severally for mention using the skeleton file. He stated that the court’s system reflects that the applicant was charged with Robbery with Violence contrary to Section 296(2) of the Penal Code and apart from that information there was no further information regarding the case. 11.From the DCI’s end, CIP Joseph Ekwom the DCIO Kwanza Sub County came and told this court that from their records the accused faced other criminal cases all related to Robbery with Violence but in all the cases the accused had either been acquitted or had cases withdrawn under Section 87A of Criminal Procedure Code. He stated that in relation to Criminal Case No.E3600/2021, the case was investigated by DCI Endebess. This court then summoned DCI Endebess to shed light.. 12.On 5/5/2026, CIP Josphat Muya, the Assistant CCIO Endebess came and told this court on oath that the police file Ref No.813/3/80/2021 related to court case No.E3600/2021. He stated that he mobilized his officers to look for the police file everywhere but the file could not be traced. He stated that he contacted the initial investigating officer in the matter who reported to him that upon conclusion of the case after trial, he left the file with the Office of the Director of Public Prosecution because the case had ended. He stated that he did not have the file and shifted the responsibility to the Office of the Director of Public Prosecution. 13.The Office of the Director of Public Prosecution in this matter has left the matter to court as Mr Mugun for the State also indicated that he had no idea of whereabouts of the police file. 14.The unique circumstances obtaining have left this court with limited options. This court tried to push the applicant during one of the mentions to tell the court whether he had anything to do with the mysterious disappearance of both the court file and the police file and he told this court that he has all along been in custody and therefore he could not have been involved in any malpractice that may have led to the disappearance of court file. 15.This court could have ordered for a retrial if the police file was available but because a retrial cannot happen without a police file, there is very little this court can do because under Article 50(2) (a) of the Constitution the accused is presumed innocent until proven guilty. So despite the suspicious circumstances under which the court file and police file both disappeared, the right of the applicant under Article 50(2) of the Constitution remains intact including the right to have the trial begin and conclude expeditiously.In the premises this court finds that the Constitutional rights of the accused dictates that he should be discharged for now under Section 87A Criminal Procedure Code. Should the file somehow miraculously resurface in future, the police can then take appropriate action. For now the applicant will be discharged forthwith vide Kitale CMC CRC NO.E3600/2021 unless otherwise lawfully held. DELIVERED, DATED AND SIGNED AT KITALE THIS 13TH DAY OF JULY, 2026.HON JUSTICE R.K. LIMOKITALE HIGH COURTRuling delivered in open courtIn the presence ofMr Mugun for the StateWilson Simyu Situma the petitioner in personDuke/Chemosop – court assistants