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By a Petition of Appeal dated 14th January 2011 and filed on the same day, the Appellants lodged this appeal challenging their conviction and sentence by the subordinate court. For a period spanning fifteen (15) years, the Appellants have diligently attended court, hoping to have their appeal heard. Regrettably, during this prolonged delay, the 4th and 6th Appellants passed away without ever knowing the fate of the appeal.
The delay in determining the matter has been occasioned by the unavailability of the lower court record. This Court has at all times expressed readiness to hear the appeal, and the failure to transmit the record cannot be attributed to this Court.
In an earlier ruling, the Honourable Mr. Justice John Mativo (as he then was) directed the Directorate of Criminal Investigations (DCI) to inquire into the disappearance of the lower court record. By a letter dated 24th June 2024, the DCI reported that the file could not be traced and recommended that three court staff members be held accountable. None of the Appellants were found culpable in the loss.
The Appellants, through counsel, submitted that they should benefit from the loss of the record. They relied on Mwangi v Republic [2005] KLR 495 , where the Court held that loss of court records, in exceptional circumstances, may justify an acquittal. They also cited PHN v Republic [2016] eKLR , where it was held that a retrial after a full hearing could amount to double jeopardy.
The Respondents, however, relied on John Karanja Wainaina v Republic, Criminal Appeal No. 61 of 1993 , where the Court of Appeal held that an acquittal should not automatically follow the loss of a court file. The Court must examine all the circumstances surrounding the loss and determine whether the loss was attributable to the Appellant and whether an acquittal would serve the interests of justice.
The settled legal position is that the disappearance of a trial record does not automatically warrant an acquittal. The Court of Appeal in Francis Ndungu Wanjau v Republic [2011] eKLR , Joseph Maina Kariuki v Republic [2008] eKLR , Pius Mukabe Mulewa & Another v Republic [2002] eKLR , and Justus Cheruiyot Chumba v Republic [2019] eKLR , reiterated that each case must be determined on its own facts and that acquittal should only follow in exceptional circumstances.
In Patrick Randu Yeri v Republic, Criminal Misc. Application No. 78 of 2014 , the Court emphasized that the duty of an appellate court is to review the trial court record and determine whether the conviction was proper. Without the trial record, the appellate court cannot re-evaluate the evidence or determine whether the decision was justified.
The disappearance of court files poses a grave threat to the administration of justice. It erodes public confidence, frustrates both prosecution and defence, and undermines judicial integrity. However, the loss of a record, standing alone, cannot be a basis for acquittal. A conviction is presumed lawful until overturned on appeal, and that presumption cannot be displaced merely because the record is missing.
The Court must therefore hold the scales of justice evenly. On the one hand, the Appellants have endured an inordinate delay of over a decade. On the other hand, the conviction by a competent court stands unchallenged on its merits because the record necessary to review it is unavailable. The Court must balance the rights of the Appellants against the public interest in maintaining the finality of criminal convictions.
Allowing an appeal in the absence of a record would amount to setting aside a conviction without considering its merits , a course not contemplated by the law. Such an approach would set a dangerous precedent, potentially encouraging interference with court files to obtain acquittals through improper means.
While the Court is deeply concerned by the loss of the record, it is equally bound by the principle that justice must be seen to be done on both sides. The disappearance of files must not become an avenue to escape lawful conviction.
Guided by John Karanja Wainaina v Republic (supra) , Rwaru Mwangi v Republic, Cr. Appeal No. 18 of 2006 , and Peter Mwangi Waithaka v Republic [2013] eKLR , I am not persuaded that this is an exceptional case warranting an acquittal. The Appellants have not demonstrated any special or compelling circumstances to justify interference with the conviction and sentence.
In this case, the trial court sentenced the Appellants to pay a fine and made an order that the structures in issue be demolished. The Appellants moved to the High Court and obtained a stay of the demolition pending the determination of this appeal. There was also mention of a related civil or land dispute, which may have contributed to the disappearance of the file.
The DCI investigations did not implicate the Appellants in the loss of the file, though the actual culprit was not identified. There are interim orders in place, and it would be difficult to either discharge or confirm them without the full record.
The charges emanated from the county government and related to formal licensing issues. Given the nature of the charges, this Court is persuaded that a retrial would not occasion undue prejudice to the Appellants.
I am guided by Peter Mwangi Waithaka v Republic (supra) , where the Court of Appeal ordered a retrial after discovering that the High Court judgment under appeal was missing. The Court held that since only the judgment was missing, the Appellant would not be prejudiced because he would still have the opportunity to be heard afresh and to appeal if necessary.
In Rwaru Mwangi v Republic (supra) , it was also held that a retrial is appropriate where the interests of justice require it and where it is unlikely to cause injustice to the Appellant.
In this case, a retrial would not result in injustice, and the trial court will take into account the passage of time and the possibility that documents may no longer be available.
Conclusion
The original trial record has been irretrievably lost, and all efforts by the parties and the court and the DCI to trace or reconstruct it have been unsuccessful. Without a proper and complete record, this Court cannot discharge its appellate mandate of re-evaluating the evidence and determining the legality or propriety of the conviction and sentence.
The absence of the record renders the appeal incapable of fair adjudication on its merits. To safeguard the Appellants’ constitutional right to a fair hearing and preserve the integrity of the criminal justice system, the appropriate remedy is to order that the matter be heard afresh.
Final Orders
The appeal cannot be determined on its merits due to the unavailability of the trial record and the failure of all reconstruction efforts.
The matter is hereby remitted to the trial court for a retrial .
The Appellants shall be produced before the Mombasa County Court, before Hon. D. Odhiambo , on the next available mention date for directions regarding the retrial.
Meanwhile, the Appellants shall remain or be admitted to bail on the same terms previously granted.
It is so ordered .
DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA
THIS 14th DAY OF NOVEMBER 2025
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF:
MR MUTWIRI FOR THE APPELLANTS
MR. NGIRI FOR THE RESPONDENT
MS. BEBORA COURT ASSISTANT
'
By a Petition of Appeal dated 14th January 2011 and filed on the same day, the Appellants lodged this appeal challenging their conviction and sentence by the subordinate court. For a period spanning fifteen (15) years, the Appellants have diligently attended court, hoping to have their appeal heard. Regrettably, during this prolonged delay, the 4th and 6th Appellants passed away without ever knowing the fate of the appeal.
The delay in determining the matter has been occasioned by the unavailability of the lower court record. This Court has at all times expressed readiness to hear the appeal, and the failure to transmit the record cannot be attributed to this Court.
In an earlier ruling, the Honourable Mr. Justice John Mativo (as he then was) directed the Directorate of Criminal Investigations (DCI) to inquire into the disappearance of the lower court record. By a letter dated 24th June 2024, the DCI reported that the file could not be traced and recommended that three court staff members be held accountable. None of the Appellants were found culpable in the loss.
The Appellants, through counsel, submitted that they should benefit from the loss of the record. They relied on Mwangi v Republic [2005] KLR 495 , where the Court held that loss of court records, in exceptional circumstances, may justify an acquittal. They also cited PHN v Republic [2016] eKLR , where it was held that a retrial after a full hearing could amount to double jeopardy.
The Respondents, however, relied on John Karanja Wainaina v Republic, Criminal Appeal No. 61 of 1993 , where the Court of Appeal held that an acquittal should not automatically follow the loss of a court file. The Court must examine all the circumstances surrounding the loss and determine whether the loss was attributable to the Appellant and whether an acquittal would serve the interests of justice.
The settled legal position is that the disappearance of a trial record does not automatically warrant an acquittal. The Court of Appeal in Francis Ndungu Wanjau v Republic [2011] eKLR , Joseph Maina Kariuki v Republic [2008] eKLR , Pius Mukabe Mulewa & Another v Republic [2002] eKLR , and Justus Cheruiyot Chumba v Republic [2019] eKLR , reiterated that each case must be determined on its own facts and that acquittal should only follow in exceptional circumstances.
In Patrick Randu Yeri v Republic, Criminal Misc. Application No. 78 of 2014 , the Court emphasized that the duty of an appellate court is to review the trial court record and determine whether the conviction was proper. Without the trial record, the appellate court cannot re-evaluate the evidence or determine whether the decision was justified.
The disappearance of court files poses a grave threat to the administration of justice. It erodes public confidence, frustrates both prosecution and defence, and undermines judicial integrity. However, the loss of a record, standing alone, cannot be a basis for acquittal. A conviction is presumed lawful until overturned on appeal, and that presumption cannot be displaced merely because the record is missing.
The Court must therefore hold the scales of justice evenly. On the one hand, the Appellants have endured an inordinate delay of over a decade. On the other hand, the conviction by a competent court stands unchallenged on its merits because the record necessary to review it is unavailable. The Court must balance the rights of the Appellants against the public interest in maintaining the finality of criminal convictions.
Allowing an appeal in the absence of a record would amount to setting aside a conviction without considering its merits , a course not contemplated by the law. Such an approach would set a dangerous precedent, potentially encouraging interference with court files to obtain acquittals through improper means.
While the Court is deeply concerned by the loss of the record, it is equally bound by the principle that justice must be seen to be done on both sides. The disappearance of files must not become an avenue to escape lawful conviction.
Guided by John Karanja Wainaina v Republic (supra) , Rwaru Mwangi v Republic, Cr. Appeal No. 18 of 2006 , and Peter Mwangi Waithaka v Republic [2013] eKLR , I am not persuaded that this is an exceptional case warranting an acquittal. The Appellants have not demonstrated any special or compelling circumstances to justify interference with the conviction and sentence.
In this case, the trial court sentenced the Appellants to pay a fine and made an order that the structures in issue be demolished. The Appellants moved to the High Court and obtained a stay of the demolition pending the determination of this appeal. There was also mention of a related civil or land dispute, which may have contributed to the disappearance of the file.
The DCI investigations did not implicate the Appellants in the loss of the file, though the actual culprit was not identified. There are interim orders in place, and it would be difficult to either discharge or confirm them without the full record.
The charges emanated from the county government and related to formal licensing issues. Given the nature of the charges, this Court is persuaded that a retrial would not occasion undue prejudice to the Appellants.
I am guided by Peter Mwangi Waithaka v Republic (supra) , where the Court of Appeal ordered a retrial after discovering that the High Court judgment under appeal was missing. The Court held that since only the judgment was missing, the Appellant would not be prejudiced because he would still have the opportunity to be heard afresh and to appeal if necessary.
In Rwaru Mwangi v Republic (supra) , it was also held that a retrial is appropriate where the interests of justice require it and where it is unlikely to cause injustice to the Appellant.
In this case, a retrial would not result in injustice, and the trial court will take into account the passage of time and the possibility that documents may no longer be available.
Conclusion
The original trial record has been irretrievably lost, and all efforts by the parties and the court and the DCI to trace or reconstruct it have been unsuccessful. Without a proper and complete record, this Court cannot discharge its appellate mandate of re-evaluating the evidence and determining the legality or propriety of the conviction and sentence.
The absence of the record renders the appeal incapable of fair adjudication on its merits. To safeguard the Appellants’ constitutional right to a fair hearing and preserve the integrity of the criminal justice system, the appropriate remedy is to order that the matter be heard afresh.
Final Orders
The appeal cannot be determined on its merits due to the unavailability of the trial record and the failure of all reconstruction efforts.
The matter is hereby remitted to the trial court for a retrial .
The Appellants shall be produced before the Mombasa County Court, before Hon. D. Odhiambo , on the next available mention date for directions regarding the retrial.
Meanwhile, the Appellants shall remain or be admitted to bail on the same terms previously granted.
It is so ordered .
DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA
THIS 14th DAY OF NOVEMBER 2025
WENDY KAGENDO
JUDGE
IN THE PRESENCE OF:
MR MUTWIRI FOR THE APPELLANTS
MR. NGIRI FOR THE RESPONDENT
MS. BEBORA COURT ASSISTANT
'