KELVIN OMONDI ODHIAMBO VS The Republic KELVIN OMONDI ODHIAMBO VS The Republic

The appellant in this matter by way of a certificate of urgency dated 10^th December 2024.
The Notice of motion is expressed to be brought under Articles 25 (c ) ,27 ,48, 50 (2) (a) (k) 159 (2) (d) of the Constitution of Kenya 2010 and Sections 123, 363 and 364 of the Criminal Procedure Code Cap 75 of the Laws of Kenya.
The applicant seeks the following orders:-
THAT the Application be certified urgent and be heard ex parte in the first instance.
THAT pending the inter partes hearing and determination of this Application, the Honourable Court be pleased to reinstate the bond terms of the Applicant pending any directions by the Honourable Court.
THAT the Honourable Court be pleased to revise the orders of the trial dated 23rd August 2023 suspending the bond terms of the Applicant in Magistrate Court Sexual Offence No. 103 of 2021: Republic v Kelvin Omondi Odhiambo.
THAT upon hearing this Application, the Honourable court be pleased to declare a mistrial and not to order for retrial to avert further miscarriage of justice.
THAT Honourable court be pleased to issue any order in the just dispensation of this Application.
According to the applicant he was charged with a sexual offence in Makadara Chief Magistrate’s Court MCS 103 of 2021.
The offences being defilement Under Section 8 (1) as read with 8(3) of the Sexual offences Act and an alternative count of committing an indecent Act with a Child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006.
The applicant through Mr. Nyamanga on the 17th of December 2024 pleaded with this court to have the applicant’s bail reinstated since bail was cancelled immediately after the applicant had been placed on his defence on 23^rd August 2023.
The trial court’s file went missing in 2024 thus rendering it impossible to have the proceedings concluded.
Counsel for the applicants submitted that a directive was issued by the Chief magistrate to have a skeleton file opened since the original trial court file could not be traced and that the skeleton file be forwarded to this court for purposes of giving directions as to the hearing of the matter considering that the original file has gone missing.
Certified copies of proceedings of what I presume to be the skeleton file have been placed in this court file and I have the advantage of perusing the same.
It is important for this court to state that this application by the applicant raises serious concerns about the handling of records in our registries. It is testimony that despite the spirited effort of the Judiciary leadership to eradicate some of these malpractices the ghost of lost files has refused to vanish from our midst.
This court takes liberty to reproduce the proceedings captured in the skeleton file in order to contextualize the arguments by counsel in this matter and the decision that this court will eventually render. The following is the verbatim record of the Lower Court:-

18.9.2024
Before Hon.I. Gichobi PM
State Counsel – Karuga
Court Assistant - Dedan
Interpretation: English/Kiswahili
Accused - present
Nyamanga for accused.
Nyamanga: It is for mention. Original file has been missing for some time now. I see a new file has been opened. I am not sure if it is reconstructed file or a skeleton file. Accused has been in custody since 02.8.2023, when his bond terms were suspended following DNA results that were tabled in court on that day. We seek your directions on how to proceed before we make any application before you.
Prosecutor: I do not have my file. I believe it is a skeleton file.
Court: Since I do not have the original file. I am not in a position to cite the actual dates. But the position of this file is that, at close of prosecution case, court made a Ruling whereby it found accused to have a case to answer Ruling whereby it found accused to have a case to answer and he was placed on defence. date for defence hearing was given.
On the date for defence hearing, prosecution made an application to withdraw the case. The court made a Ruling declining that application to withdraw the matter by the prosecution. Court noted among other things that this is a defilement case involving a minor. Accused works for the Kenya Army as an officer therein. The court opined that based on the position accused hold in society being that of defendant of life and property and not their devourer, he has a duty and a responsibility as such. And court insisted he must tender his
defence to the case he is facing.
The Court gave another defence hearing. On that date a new advocate appeared holding brief for another advocate who was seeking an adjournment and a hearing date in two months' time. This court normally gives very near dates
for defence hearing. And the court was at pains to give a date for defence hearing in two months time. However. Defence counsel insisted on the far date
and the court obliged and gave a date for defence hearing in two months time,
albeit reluctantly.
However, when the matter came up for defence hearing the court file was
missing. Ant to-date it has not been traced. I am convinced that the missing of
the court file from court registry was occasioned by this court's refusal to grant the prosecution's application to withdraw the case which was at the defence
hearing stage when they made the said application. And the logical conclusion
would be that some judiciary staff were or have been involved in hiding the said file so as to frustrate the complainant and ensure she does not get the justice she requires or that this case does not come to a logical conclusion and once defence has tendered its defence.
However, I keep hope alive that all is not lost and this case is still alive and kicking. This is a skeleton file that has been opened over as we give the in charge criminal registry more time to trace the original file.
I will allow the said tracing be conducted for another one month. In the meantime, prosecution will also guide us on their record so as to be able to make an appropriate decision on how the case will proceed.
I.GICHOBI
PRINCIPAL MAGISTRATE
18.9.2024
Nyamanga: My client seeks you recuse yourself for suspending his bond.
Court: Do a formal application or appeal order for suspension of bond.
Prosecutor: We pray for summons to the Investigating Officer.
Court: Noted. By consent mention on 22.10.2024. (Virtual)
Summons to issue to Investigating Officer PC Anne Ekasi C/o Pangani Police Station to avail police file on the hearing date.
Summons to issue to Investigating Officer C/o Pangani police station to attend court and indicate availability of the witnesses.
I.GICHOBI
PRINCIPAL MAGISTRATE
18.9.2024
22.10.24
Before Hon. I. Gichobi - PM
State Counsel - Karuga
Court Assistant - Dedan
Interpretation: English/Kiswahili
Accused - Present
Nyamanga for accused.
Prosecutor: Police file has been brought. The person representing Investigating Officer is present in court.
Court: Matter is for mention for directions. The original file is yet to be traced. And noting that the case was at defence hearing stage before it was misplaced or rather went missing, I have sought consultation with the Head of Station, Chief Magistrate Hon. Tito Gesora who has indicated to me I allow him some more time so as to give me further directions in this case.
Nyamanga: I thought last time you indicate prosecutor should also give us their position.
Court: True.
Prosecutor: We have Investigating Officer representing PC Ekasi. She cash confirm availability of witnesses or what Investigating Officer has told her.
Female Adult Christian Sworn states in English: I am No.100651 PC (W) Agina Mbuya. I am attached at Pangani Police Station. Investigating Officer in this case PC Anne Ekasi is on maternity leave. The witnesses in this case cannot be reached.
Court: Is one witness a school going witness (complainant).
PC Agina: I am not aware.
Court: All witnesses?
PC Agina: Not all. Only the mother and the victim.
Court: What if I tell you to liaise with the DCI?
PC Agina: We can
Nyamanga: Maybe we can mention the matter in November to get direction from the CM and in early December, for Investigating Officer to get witnesses.
Court: Noted. Investigating Officer representing is granted time to trace all the
witnesses. She is at liberty to seek assistance of DCI.
By consent mention on 3.12.2024 for Investigating Officer or officer representing the Investigating Officer to tell us the position of witnesses and documents.
Mention on 20.11.2024 for further directions.
I.GICHOBI
PRINCIPAL MAGISTRATE
22.10.2024
20.11.24
Before Hon. I. Gichobi - PM
State Counsel - Karuga
Court Assistant - Dedan
Interpretation: English/Kiswahili
Accused - Present
Nyamanga for accused
Prosecutor: It is for directions.
Court: On our side, original file is yet to be traced. We will await the Investigating Officer to give directions on 3.12.2024, to give us direction first.
Nyamanga: You had indicated that you were in consultations with the CM to give further
directions regarding the matter.
Court: I believe oversight has on my part. I did not go back to the Chief Magistrate for further consultation. My mind was on the Investigating Officer.
I will go back to CM and consult.
By consent mention on 3.12.2024 for directions.
I.GICHOBI
PRINCIPAL MAGISTRATE
20.11.2024
3.12.2024
Before Hon. T. Gesora - CM In Chambers
Directions
Matter be notified to the Judge with a vie to declaring mistrial so that it can begin afresh or for appropriate order.
Trial Magistrate to find out if the witnesses can be availed. Skeleton file proceedings be typed.
3.12.2024
Before Hon. I. Gichobi - PM
State Counsel - Karuga
Court Assistant - Dedan
Interpretation: English/Kiswahili
Accused - Present
T. GESORA
CHIEF MAGISTRATE
Christine Nthenya - presents
Nyamanga for accused - present
Prosecutor: Christine Nthenya is mother to the victim. She informs me that minor is unavailable. Investigating Officer indicate they were able to procure other documents.
The Investigating Officer indicate they have written to MSF hospital to get copies of medical documents. They are awaiting the reports. They have not yet gone to the Government Analyst but they believe they can be able to get copies of report from the Government Chemist.
Court: I note that complainant's mother is present in court. Complainant is also available.
Indication is that copies of documents can also be availed. As such further to directions give by the Head of Station Hon. Tito Gesora Chief Magistrate on 3.12.2024 in Chambers, this file be placed before a Judge in High Court of Kenya at Nairobi, Criminal Division to give directions on the hearing of the matter which is at defence hearing state, but whose original file has gone missing.
Proceedings be typed.
By consent, mention on 3.2.2025 (Virtual)
I.GICHOBI
PRINCIPAL MAGISTRATE
3.12.2024

The proceedings reveals that the learned Honorable magistrate was in conduct of the matter had taken note of serious concerted efforts by the prosecution to ensure that the trial did not proceed to its logical conclusion. It is clear from a reading of the proceedings that according to the learned Honorable magistrate the file disappeared following the court’s order declining to grant an application for withdrawal which was made by the prosecution.
This court has independently noted that the defence made spirited effort to ensure the matter did not proceed to defence hearing. The action by the prosecution coupled with the conduct of the defence after the accused was placed on his defence leave no doubt that indeed the trial court was on its own in the pursuit of delivery of justice to the victim.
Interestingly, the applicant now seeks to have this court revise the orders issued by the learned Honorable magistrate on 23^rd August 2023 and reinstate the applicant’s bond terms and further declare a mistrial and avoid the making of an order for a re-trial. Simply put, the effect of the orders sought by the applicant would be to simply acquit him of the charges without holding a trial. If this court were to proceed and accede to the request by the applicant, the signal that such a decision would send to all individuals facing serious trials in our courts is that all you need to do to secure your freedom is to organize and have the court record disappear and you will be guaranteed of your freedom. That would result into a mockery of justice and encourage corruption in the court registries .
It is during times like this when courts are faced with the threat of the course of justice being undermined that the wisdom of Chinua Achebe in the book ‘Things Fall Apart’ must be followed with religious commitment. Courts, must do that which has not been done before in order to secure the interests of the administration of justice. Chinua Achebe had this to say:-

“ if we fight the stranger we shall hit our brothers and perhaps shed the blood of a clansman. But we must do it. Our fathers never dreamed of such a thing, they never killed their brothers. But a white man never came to them. So we must do what our fathers would never have done.”

The enemy in the instant case is that person who held the trial course file last before it went missing. Before this court is us to declare a mistrial and decline to order a re-trial it should be satisfied that following the loss of the file that action was taken against all those who may have been involved in its disappearance. The Lower court in forwarding the skeleton file to this court for directions should have at least indicated the efforts that have been made to trace the file and what became of the persons who handled the file last. Obviously, there must have been an officer entrusted with the safety of the file, that officer should have at least been called to account for the loss. The record does not show anything in that regard.
The court cannot simply wish away the loss of the file, raise up its hands and declare that it is helpless thus the accused must be set free.
The courts of this country have had to deal with similar situations before some of which involved accused persons who had already been convicted and on appeal sought to be released on account of missing files.
In John Karana Wainaina vs. Republic - Criminal Appeal No. 61 of 1993 (unreported) the court held:-
In such a situation as this, the court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss has occurred. Who occasioned the loss of all the files? Is the appellant responsible? Should he benefit from his own mischief and illegality if he is? In the final analysis the paramount consideration must be whether the order proposed to be made is the one which serves the best interest of justice. An acquittal should not follow as a matter of course where a file has disappeared. After all a person like the appellant has lost the benefit of the presumption of innocence given to him by section 72 (2) (a) of the Constitution, he having been convicted by a competent court and on appeal the burden is on him to show that the court which convicted him did so in error. Thus, the loss of the files and proceedings may deprive him of ability to discharge that burden, but it by no means follows that he must of necessity be treated as innocent and automatically acquitted. The interest of justice as a whole must be considered.” .
Following the wisdom espoused in the above decision this court must weigh carefully the orders that it eventually grants to ensure that the interests of justice are protected and that the victim of the crime is not denied justice. Needless to say the case involves a Sexual offence which by nature leaves a victim traumatized and that trauma may remain for a lifetime. It is important therefore that the scales of justice be evenly balanced so that the victim does not suffer injustice courtesy of actions of faceless characters who spirited away the court record.
It would be important to pause here and ask, who stood to benefit from the loss of the file at the stage at which the matter had reached? It certainly cannot have been the victim thus she must not suffer the injustice of her case being compromised by the sheer disappearance of a court file.
The prosecution has not indicated to this court that it is unable to locate its file or that it may not be able to secure the attendance of the prosecution witnesses without difficulty or undue delay should this court grant an order for re-trial.
In Danson Maina Muchoki v Republic [2013] eKLR, the court held that:

“It is a well settled principle that an acquittal does not automatically follow when the Court records are untraceable. The case before us clearly manifests that there was an orchestrated plan to have the files disappear. We say so because all the files connected to the case have mysteriously disappeared, that is, the Lower Court file, and the Police Investigation file. High Court Misc. Criminal App. No. 246 of 2010 now before us had at one time disappeared. This cannot be sheer coincidence.

In determining the most appropriate action to take, Courts must seek to uphold the overall interests of justice. It therefore cannot follow automatically that the missing of Court records should result in an acquittal. If we took this course as boldly suggested by the Learned Counsel for the Applicant, it would be detrimental to justice, and we dare add, create grounds for people to collude to defeat the ends of justice by making files disappear….”
The authority cited above reinforces the position taken by this court that courts must ensure while dealing with matters such as this that they do not fall inti the trap of mischief makers who work in cahoots with officers serving in court registries to cause the disappearance of court records. It must be made an expensive affair for all those that attempt to interfere with the course of justice by causing the disappearance of court records.
In John Ooko Otieno v Republic2 {2008} e KLR in which the Court of Appeal stated: -
“…Whereas the loss of files in the court registry is a common occurrence, the loss of all documents i.e. court file, judgment, police file and Attorney General’s file is a rare occurrence. It has however, occured and this Court is not a stranger to such a situation. This Court has on more than one occasion in the past encountered such a situation. In the case of Pius Mukaba Mulewa and Another vs. Republic, Court of Appeal Criminal Appeal No. 103 of 2001, this Court, faced with that situation had the following to say:
“What we can take from ZAVER’S case is that the courts must try to hold the scales of justice and in doing so, must consider all the circumstances under which the loss has occurred. Who stands to gain from the loss? Is it merely coincident that both the magistrate’s file and that of the police are lost? Does the available evidence point to anyone as being responsible for the loss? And if so, can such a party be allowed to benefit from a situation of his own making? In final analysis, the question to be answered must be whether the order proposed to be made is the one which serves the best interest of justice. We reject any proposition that in cases where a file has disappeared, and it is not reasonably feasible to order a retrial, an acquittal must follow as a matter of course. After all a person who has been tried or has pleaded guilty before a court with competent jurisdiction and has been convicted by such court has lost the benefit of the presumption of innocence given to him by section 77 (2) (a) of the Constitution and on appeal the burden is on him to show that the court which convicted him did so in error. The loss of the file may deprive him of the ability to discharge that burden, but it by no means follows that he must of necessity be treated as innocent and automatically acquitted. The interest of justice as a whole must be considered”.
It is precisely for this reason that this court will not set aside the order suspending the bail that the Lower court had granted to the applicant for to do so,would amount to this court reviewing the decision of the learned Honorable magistrate without the benefit of the record of proceedings before the decision was reached. This is a court of record and it is not the business of this court to engage in speculations thus it would be improper for this court to disturb decision lawfully made by a court without the benefit of determining the merits thereof.
As a result, this court will now consider whether or not a re-trial should be ordered in the circumstances.
In the case of Fatehali Manji -Vs-Republic ]1966] E.A. 343 the Court of Appeal for Eastern Africa stated thus:-

“In general a retrial will be ordered only when the original trial was illegal or defective ;it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interests of justice require it;
See also Mwangi -Vs- Republic [1983] KLR 522 in which the Court of Appeal stated:-
“… that a retrial should not be ordered unless the appellant court is of the opinion that, that on a proper consideration of the admissible evidence, or potentially admissible, evidence a conviction might result: Braganza -Vs- Republic [1957] E.A. 152 (CA) 469
Pyarwa Bussam -Vs- Republic [1960] E.A. 854.
Several factors have therefore to be considered. These include:-
1. When the original trial was illegal or defective a retrial will be ordered.
2. A retrial will not be ordered if the conviction was set aside because of insufficient of evidence.
3. A retrial should not be ordered to enable the prosecution to fill up the gaps in its evidence at the first trial
4. A retrial should not be ordered where it is likely to cause an injustice to the accused person.
5. A retrial should be ordered where the interest of justice so demand
6. Each case should be decided on its own merits
7. Whether there is evidence to support conviction.

Taking into account the circumstances surrounding the disappearance of the court file and the comments made by the learned Honorable magistrate in the proceedings reproduced in the body of this ruling, it is the finding of this court that a re-trial should be ordered in the interest of justice.
The order for a rehearing of the matter is the only order that would bring this matter to a just determination.
To proceed in the manner proposed by counsel for the applicant, this court would certainly be surrendering its processes to the whims and caprice of litigants who might be privy to the circumstances surrounding the disappearance of the court file.
The accused person shall therefore be produced before the learned Honorable Chief Magistrate Makadara who shall immediately take a fresh plea and hear the matter on a priority basis considering that this is a 2021 case thus any further delay would amount to a denial of justice to the victim.
The matter shall be mentioned before the learned Chief Magistrate on 5^th of March 2025 for plea. The trial magistrate shall then consider whether or not bail should be granted.
The application is therefore dismissed.
In order to discourage the loss of court records, the circumstances leading to the loss of this file should be immediately investigated by the Director of Criminal investigations through the DCIO Starehe who shall thereafter make the necessary recommendation to the Director of Public Prosecutions for appropriate action.
The menace of disappearance of court files calls for decisive action by the court if the courts are to guarantee individuals that come to court in search for justice, that their files are secure and that the administration of justice is not susceptible to manipulation through the disappearance of court files.
It is upon the taking of such decisive steps that the judiciary shall eradicate the cartels that facilitate such acts since a private person short of forcefully breaking into the court registries cannot possibly gain access to the court records without the connivance of some member of staff who does not respect the institution of the judiciary and its critical role in resolving disputes in a just and democratic society.
It is so ordered.