(Arising from the decision and circumstances surrounding Mombasa CM’S CR CASE Number 2833 0f 2012 but Committal warrant showing CR 2833 of 2010 by HON A. K GACHIE)
1. Kazungu Kahindi moved to this court way back on 19/7/2014. His petition of appeal is dated 19/07/2014. By a letter dated 12/1/2015, The Deputy Registrar High Court of Mombasa called for the original records and certified copies of the proceedings and exhibits.
2. It appears that the file went into some limbo up to the 15th day of March 2018 when it was mentioned before the Judge. It then emerged that the trial court record had not been traced. That has remained the position and on 20/1/2025, the Appellant pointed out that he has been before 6 Judges and I am the 7th one. He urged me to make a decision one way or the other.
3. Indeed this matter was the subject of a ruling in a series of files where the Hon. Judge of the Court of Appeal – Judge Mativo then Judge of the High Court in CRIMINAL APPEAL 128 OF 2016
MOHAMED SAID SALIM ALIAS MAJOR VS REPUBLIC: [2021] KEHC 212 (KLR)
directed that the DCI comes in to investigate who may be culpable for the disappearance of the files. This was done and I have since seen the findings. Unfortunately that intervention did not yield any positive results. It is noteworthy that there were also no negative findings against the Appellant herein.
4. In the above cited Judgment by Justice Mativo, he echoed, the position in a long list of authorities, that the disappearance of a file, where a retrial cannot be held, does not lead to the automatic acquittal of the Appellant. That is basically because the Appellant is deemed to have lost the benefit of the presumption of innocence after the conviction by the trial court. Some courts have however asserted that the presumption resumes after the Appeal is filed.
5. This is what he said “ in James Onyango Nyakoiro v Republic6 which underscored the need for the court to hold the scales of justice and in doing so, it must consider the circumstances of the case including whether the appellant is responsible for the loss and whether he should benefit from his mischief. It held that in the final analysis the order made should be the one which serves the interests of justice. Counsel urged the court to consider the offence and bear in mind that fair trial entails the interests of the accused, the victim and the society. (Citing Natasha Singh v CBI7)6{2021} e KLR.7{2013} 5 SCC741.
6. A useful point of reference in addressing the issue at hand is to mention that two principles are discernible from decided cases. One, that the absence of a trial courts record does not as a matter of course necessitate an acquittal. This appears to be the rule rather than the exception. 7. 7.The Court of Appeal has consistently accentuated that there cannot be an automatic acquittal merely because all the records for the case have disappeared. (See Francis Ndungu Wanjau v Republic,8 Joseph Maina Kariuki v Republic,9 Pius Mukabe Mulewa & another v Republic,10 Justus Cheruiyot Chumba v Republic11). Also, in Mwangi v Republic12the court was emphatic that loss of a court file does not mean that an acquittal would automatically follow except where there exist exceptional circumstances, in which case the court will acquit as it.8{2011} e KLR.9{2008} e KLR.10{2002} e KLR.11{2019} e KLR.12{2005} KLR 495.
8. Two, in such a situation, the court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss of the file occurred. The court is also required to consider who occasioned the loss of the file and whether the appellant is responsible, and whether the applicant should benefit from his own mischief and illegality. The paramount consideration must be whether the order proposed to be made in the one which serves the best interests of justice.
9. The decisions set out above all state that an acquittal to arise, there must be exceptional circumstances and each matter is to be treated on its own basis.
Are there exceptional circumstances herein?
10. First, I note that the Executive Officer has confirmed that the trial record cannot be traced. Secondly, I note that even the intervention by the DCI did not unearth the circumstances behind the disappearance of the trial court record. Thirdly or on the flip side, there was also no evidence that the Appellant participated in the disappearance of the file. “
11. The reasoning of the courts in the decisions above is that a person should not benefit from a situation he has created. One must however ask the question: Without any proof, should a party be penalized for a situation he played no role in?
12. In this particular case, I have noted that Appellant was committed vide a committal warrant dated 24/09/2014. It shows he was convicted in criminal case number 2833 of 2010 by Hon. A.K. Gachie. Now, how can the case be 2833 of 2010 yet the offence is said to have occurred on 24/09/2012 and the date of arrest was 27/9/2012. The charge sheet also shows date to court is 30/1/2012. This mix up on the lower court case persisted up to 2/11/2022 when the court was alerted that CR. 2833 of 2020 was in respect of Kiaka Sambuja Hashua and not the Appellant herein. The court then called on the file no. 2883 of 2010. Likewise, it was not traced and there are no movement records.
13. The appellant produced the remand warrant in which the case appears as 2833 of 2010. He was asked to provide copies of the witness statements. On 11/7/2024, the Hon. Judge F W Andayi noted the a normally in the years and called for the file no. 2833 of 2012. The court administrator appeared in court and also wrote a letter dated 7/10/2024, indicating that the file had not been traced in the court archives and there were no records of the file movement over the same.
14. The key question is, did the appellant stand to benefit from the disappearance of the file?. May be. Hoping that the court would be lenient.
15. There has however been a long and consistent line of decisions that show none of the Appellants in Kenya have benefitted from such a scenario.
16. This leads me to ask, could someone else, knowing fully well that the courts are hesitant to release a person on the grounds of a missing file, have engineered the disappearance of the record to ensure that the Appellant is condemned then life? What if the evidence was so hopeless and manipulated to achieve a certain end? Is that possible? I think so. We note that someone has engineered the disappearance of not only the court file but also the police file. Then the Appellant is committed to prison a defective remand warrant. Could he have engineered the defect in the committal warrant? I think not.
17. It is for this reason that I find that this file falls within the special and exceptional circumstances envisaged by the Court of Appeal where someone remains in custody awaiting his appeal for now close to 13 years on a defective committal warrant.
19. It is not possible to hold a retrial in this case and consequently I called for a social inquiry report and one dated 13th March 2023 was prepared by Simon Mwero. It shows that the appellant has reformed and trained in carpentry. His family is ready to assist in his resettlement. The victim is said to have relocated.
20. I find that this is a case which qualifies for the release from of the Appellant. It falls within the exceptional and special circumstances. I must emphasis that each case must be treated according to its own particular and peculiar circumstances and this decision does not by any way mean an automatic release of anyone whose file has gone missing.
20. This is an exceptional matter. Mostly based on the defect in the committal warrant. In any event the appellant has been in custody for close to 13 years. I called for a social inquiry report which shows that he has been rehabilitated.
21. Based on the above and without any record, the best this court can do is set aside the sentence and substitute it to one of the time already served and an additional Probation Sentence of 3 years to ensure that his reintegration into society is closely monitored.
22. It is so ordered.
Dated, signed and delivered in Open Court/online through MS TEAMS,
this 14th day of April 2025
HON. LADY JUSTICE W. K. MICHENI
JUDGE
In the presence of:
Appellant in person
MR NGIRI for the state
BEBORA .Court Assistant
HON. LADY JUSTICE W. K. MICHENI
JUDGE