John Ng’ang’a Kimani & another v Republic [2004] KECA 85 (KLR)
The bottom line
#A lost appeal judgment doesn't mean freedom: Kenya's Court of Appeal ordered the convicted men's first appeal reheard with priority rather than acquitting them.
What this practically means
#Executive summary
#Key legal issues
#What should a second appellate court do where the judgment of the first appellate court (the High Court) is missing and cannot be traced?
The second and final appellate court has nothing to go by and cannot determine the appeal; in the interest of justice the first appeal must be reheard in the High Court, which must re-evaluate the evidence and reach its own conclusion.
The appellants were not responsible for the disappearance of the High Court judgment, but the loss left the second appellate court with only the trial proceedings and the trial court's judgment, without the advantage of what the High Court said when it dismissed the first appeals. Since a second appeal presupposes the first appellate court's conclusions, justice required that the first appeal be reheard so that the High Court could re-evaluate the evidence and come to its own conclusion, which would then be subject to a second appeal. The Court was satisfied the appellants would not be prejudiced because the rehearing would be accorded priority.
Whether inordinate delay and the loss of the first appellate judgment entitle convicted persons to an acquittal.
No. Acquittal was refused because the appellants were convicted and sentenced according to law by a court of competent jurisdiction and no mistrial was suggested; the remedy is a rehearing of the first appeal.
The Court weighed counsel's submission that the appellants had suffered sufficiently through the long pendency of their appeals against the legality of the underlying convictions. It held that sight should not be lost of the fact that the appellants were sentenced according to law by a court of competent jurisdiction, and that nothing anywhere suggested their trial before the Senior Resident Magistrate was a mistrial. The loss of the first appellate judgment, for which the appellants were not to blame, therefore justified a rehearing of the first appeal rather than an acquittal.
Whether the order sending the appeal back to the High Court amounts to an order for re-trial.
No. The order is for a rehearing of the first appeal: the High Court is to re-evaluate the trial evidence and come to its own conclusion; it is not a re-trial before the trial court.
The Court referred to the principles on ordering re-trials reviewed in Pius Olima and the East African authorities, but was careful to distinguish a rehearing of a first appeal from a re-trial. A re-trial would expose the appellants to being tried afresh; a rehearing confines the High Court to the record of the trial, on which it must re-evaluate and consider the evidence and come to its own conclusion. That conclusion, if the appeals are again dismissed, would come to this Court by way of second appeal.
Whether the decision in Criminal Appeal No. 58 of 1989, where convictions were set aside, compelled the same outcome here.
No. That case concerned a first appeal, whereas the present matter was a second appeal; it was distinguished.
The Court was at pains to point out that in Criminal Appeal No. 58 of 1989 it had set aside, but had not quashed by way of acquittal, the convictions of the appellants therein, and that the appeal in that case was a first appeal unlike the second appeal here. The distinction mattered because, on a first appeal, the appellate court re-evaluates the whole evidence itself, whereas a second appellate court works from the first appellate court's judgment. That precedent therefore did not compel the same outcome.
Legal principles established
#- Where the judgment of the first appellate court cannot be traced, a second and final appellate court has no material on which to determine the appeal; where the conviction was lawful and no mistrial is suggested, the proper course is to direct a rehearing of the first appeal rather than to acquit.
- An order sending an appeal back to the High Court after the loss of its judgment is a rehearing of the first appeal, not an order for re-trial: the High Court re-evaluates the trial evidence and comes to its own conclusion, and that conclusion is then subject to a second appeal.
Court orders
#- 1.The two appellants' appeal in the High Court be re-heard.
- 2.The said appeal be set down for hearing as a matter of priority.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.CR.A. No. 204, 205 of 1986
- Jurisdiction invoked
- Second and final appeal to the Court of Appeal; the judgment does not cite the specific constitutional or statutory provision conferring jurisdiction, describing the matter only as a second and final appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Ng’ang’a Kimani & another v Republic [2004] KECA 85 (KLR)", Case Analysis (2004). Criminal Appeal No. 100 of 1990. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2004/85/eng@2004-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.