Introduction
1. This Honourable Court is called to determine the Notice of Motion
application dated 30 th October, 2024 brought under the dint of to
Section 3 of the Criminal Procedure Code and other enabling
Provisions of The Law by the Applicant.
2. The Applicant sought the following orders:-
a) THAT the Court file which cannot be traced be reconstituted using
copies of available documents supplied to the court registry by the
parties to enable further prosecution of the case.
b) THAT the reconstructed Court file be maintained as the record of the
Court for all intent and purposes of further action in the case.
c) THAT upon reconstruction of the Court file, the same be placed before
a Judge in the Criminal Division for further directions.
3. The Application is supported by the 7 th Accused Person affidavit
wherein he avers that:-
a. The seven (7) Accused persons were charged before the Chief
Magistrate's Court on 11 th July, 2011 in Anti-Corruption Case No.
10 of 2011.
b. The case proceeded before the Magistrate’s Court until 17 th
January,2017 when the trial Court ordered the prosecution to
close its case for lack of witness.
c. Being dissatisfied with the direction of the trial Magistrate, the
prosecution filed this reference before the High Court.
d. The reference was registered as Number 3 of 2017 and was
placed before Justice Dorah Chepkwony.
e. On 6 th February, 2017 Justice Chepkwony stayed the
proceedings in Mombasa Anti-Corruption Case No. 10 of 2011
pending the hearing and determination of the Revision.
f. The Revision was duly heard and Ruling was scheduled for 24 th
March, 2017.
g. No Ruling was delivered on 24/3/2017 and since then there has
been no action in this matter as the Court file cannot be traced.
h. Several efforts had been made by the registry to trace the file but
the same has not been found.
i. The Magistrate’s Court file was enjoined in the Revision file and
the proceedings have stalled.
j. The Accused have been patiently waiting for over seven (7)
years and some of them were still working in government
institutions.
k. It was now over thirteen (13) years from the time the Accused
were arraigned in Court and would like to know their fate.
Analysis and Determination
4. Unlike in Civil cases, where every document filed in Court, a copy
thereof is retained and or served on the parties, from which copies a
Court file can be reconstructed, that is not the case with Criminal
cases. Other than perhaps being supplied with copies of the charge
sheet and witness statements nothing else is availed to the accused
person and or his Counsel.
5. Articles 50 (1) (2) (q) of the Constitution of Kenya, 2010 provides for
the protection of the Law and that parties should be afforded a fair
hearing within a reasonable time by an independent and impartial
court established by law.
6. This case in question was instituted by the Complainant in 2011 and to
date it has not been determined to its conclusion for the mere reason
that the file was misplaced.
7. I should therefore fashion a remedy that guarantees their rights and
also engenders integrity in the process of criminal justice to all
including the victims of their crimes.
8. Retrial is an option in such cases. In High Court Misc. Criminal
Application No. 246 of 2010- Danson Maina Muchoki – Versus - Republic.
Ochieng and Achode JJ in dispensing the argument that an acquittal
should follow where court records are alleged to be missing, stated
that, the appropriate orders to make where court records are alleged to
be missing, depending on the circumstances of the case, is a retrial.
9. Nonetheless, retrial is ordered where a trial is possible; the evidence
and witnesses should be available. It may also be ordered in the
interest of justice. See the Court of Appeal in Ikimat – Versus - Republic
[2005] IKLR 1982 where it stated that: -
“A retrial should not be ordered unless the court is of the opinion that
on a consideration of the admission or potentially admissible evidence
a conviction might result, each case must depend on its particular facts
and circumstances but an order for the retrial should only be made
where the interests of justice require it and should not be ordered
where it is likely to cause an injustice to the accused person.”
10. In this case, the exhibits are not available. The incident took place over
14 years ago and possibility of procuring all the witnesses may be
impossible or only with great difficulties and expense. This option is
therefore not feasible in this case.
11. The reconstruction of a skeleton file is therefore the most feasible
option in this case. I so order. But how will this be done in a manner
that ensures the record as reconstituted in credible and reliable?
Conclusion and Disposition
12. In my considered view, the DPP, in liaison with the Investigating
Officer and the Defence, will provide any material in their possession
which is relevant to this exercise. Then there shall be a session to
consider the available material and whether they are credible or not.
Eventually, the record agreed by parties and authenticated by court
shall become or a decision to the contrary made.
13. On the basis of the above, the court finds the Notice of Motion
application dated 30 th October, 2024 is found to have merit and the
same is hereby allowed. The record to be reconstituted within the next
30 days.
14. Mention on 17/6/2025 before the DR.
IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL,
SIGNED AND DATED AT MOMBASA THIS …….15…………DAY OF
……………MAY…………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. Ngiri……………State Counsel;
…………Chitembwe……………………………….…Applicants
1. This Honourable Court is called to determine the Notice of Motion
application dated 30 th October, 2024 brought under the dint of to
Section 3 of the Criminal Procedure Code and other enabling
Provisions of The Law by the Applicant.
2. The Applicant sought the following orders:-
a) THAT the Court file which cannot be traced be reconstituted using
copies of available documents supplied to the court registry by the
parties to enable further prosecution of the case.
b) THAT the reconstructed Court file be maintained as the record of the
Court for all intent and purposes of further action in the case.
c) THAT upon reconstruction of the Court file, the same be placed before
a Judge in the Criminal Division for further directions.
3. The Application is supported by the 7 th Accused Person affidavit
wherein he avers that:-
a. The seven (7) Accused persons were charged before the Chief
Magistrate's Court on 11 th July, 2011 in Anti-Corruption Case No.
10 of 2011.
b. The case proceeded before the Magistrate’s Court until 17 th
January,2017 when the trial Court ordered the prosecution to
close its case for lack of witness.
c. Being dissatisfied with the direction of the trial Magistrate, the
prosecution filed this reference before the High Court.
d. The reference was registered as Number 3 of 2017 and was
placed before Justice Dorah Chepkwony.
e. On 6 th February, 2017 Justice Chepkwony stayed the
proceedings in Mombasa Anti-Corruption Case No. 10 of 2011
pending the hearing and determination of the Revision.
f. The Revision was duly heard and Ruling was scheduled for 24 th
March, 2017.
g. No Ruling was delivered on 24/3/2017 and since then there has
been no action in this matter as the Court file cannot be traced.
h. Several efforts had been made by the registry to trace the file but
the same has not been found.
i. The Magistrate’s Court file was enjoined in the Revision file and
the proceedings have stalled.
j. The Accused have been patiently waiting for over seven (7)
years and some of them were still working in government
institutions.
k. It was now over thirteen (13) years from the time the Accused
were arraigned in Court and would like to know their fate.
Analysis and Determination
4. Unlike in Civil cases, where every document filed in Court, a copy
thereof is retained and or served on the parties, from which copies a
Court file can be reconstructed, that is not the case with Criminal
cases. Other than perhaps being supplied with copies of the charge
sheet and witness statements nothing else is availed to the accused
person and or his Counsel.
5. Articles 50 (1) (2) (q) of the Constitution of Kenya, 2010 provides for
the protection of the Law and that parties should be afforded a fair
hearing within a reasonable time by an independent and impartial
court established by law.
6. This case in question was instituted by the Complainant in 2011 and to
date it has not been determined to its conclusion for the mere reason
that the file was misplaced.
7. I should therefore fashion a remedy that guarantees their rights and
also engenders integrity in the process of criminal justice to all
including the victims of their crimes.
8. Retrial is an option in such cases. In High Court Misc. Criminal
Application No. 246 of 2010- Danson Maina Muchoki – Versus - Republic.
Ochieng and Achode JJ in dispensing the argument that an acquittal
should follow where court records are alleged to be missing, stated
that, the appropriate orders to make where court records are alleged to
be missing, depending on the circumstances of the case, is a retrial.
9. Nonetheless, retrial is ordered where a trial is possible; the evidence
and witnesses should be available. It may also be ordered in the
interest of justice. See the Court of Appeal in Ikimat – Versus - Republic
[2005] IKLR 1982 where it stated that: -
“A retrial should not be ordered unless the court is of the opinion that
on a consideration of the admission or potentially admissible evidence
a conviction might result, each case must depend on its particular facts
and circumstances but an order for the retrial should only be made
where the interests of justice require it and should not be ordered
where it is likely to cause an injustice to the accused person.”
10. In this case, the exhibits are not available. The incident took place over
14 years ago and possibility of procuring all the witnesses may be
impossible or only with great difficulties and expense. This option is
therefore not feasible in this case.
11. The reconstruction of a skeleton file is therefore the most feasible
option in this case. I so order. But how will this be done in a manner
that ensures the record as reconstituted in credible and reliable?
Conclusion and Disposition
12. In my considered view, the DPP, in liaison with the Investigating
Officer and the Defence, will provide any material in their possession
which is relevant to this exercise. Then there shall be a session to
consider the available material and whether they are credible or not.
Eventually, the record agreed by parties and authenticated by court
shall become or a decision to the contrary made.
13. On the basis of the above, the court finds the Notice of Motion
application dated 30 th October, 2024 is found to have merit and the
same is hereby allowed. The record to be reconstituted within the next
30 days.
14. Mention on 17/6/2025 before the DR.
IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL,
SIGNED AND DATED AT MOMBASA THIS …….15…………DAY OF
……………MAY…………..…….., 2025
……………………………………………………..
HON. LADY JUSTICE W. M. KAGENDO
(JUDGE)
HIGH COURT OF KENYA AT MOMBASA
(CRIMINAL DIVISION)
In the presence of:
M/s. Bebora, Court Assistant;
……………Mr. Ngiri……………State Counsel;
…………Chitembwe……………………………….…Applicants