REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU CRIMINAL APPEAL NO. 40 OF 2012 KENNEDY MUGENDI NJAGI........APPLICANT/APPELANT VERSUS REPUBLIC............................................................RESPONDENT RULING 1. The applicant lodged this appeal against conviction and sentence in Runyenjes P.M. Criminal case No. 560 of 2011. He was convicted of defilement and sentenced to serve life imprisonment. 2. The Deputy Registrar has severally called for certified copies of proceedings and judgment from Runyenjes Court without success. The correspondences in this file run from 2012 to this year between the Deputy Registrar of this court and the Executive Officer Runyenjes. The accused has also written letters to the Deputy Registrar reminding him to call for the lower court record and complaining of delay in hearing the appeal. 3. With this background information, this court directed Executive Officer Runyenjes court to file a report on the efforts made in tracing the file. 4. An affidavit sworn by one Benjamin Kituva, Executive Officer Runyenjes and sworn on 12/04/2017 was filed. He deposes that the matter came to his attention on 20/04/2016 when he received a request to produce the lower court record plus certified copies of proceedings for purposes of hearing the appeal. 5. He learnt that the file could not be traced in the registry. He then mobilized the members of staff to look for the file but to no avail. He then wrote the Deputy Registrar to that effect and copied the letter to the accused person. The file has gone missing completely and efforts to trace it have been exhausted. 6. The court on receiving the affidavit of Mr. Kituva fixed the case for mention and invited the appellant and the respondent to address it on the way forward. 7. The appellant asked the court to acquit him and stated that he was not involved in the loss of the court file. He further explained that there was no possibility of his involvement since his relatives do not come to see him in prison. He alleges he was abandoned by the family soon after he was jailed. having abandoned him after he was jailed. 8. Ms. Manyal for the respondent argued that the loss of the lower court file should not be a ground for release in an appeal. It was further stated that the appellant was charged and convicted of a serious offence of defilement and sentenced to life imprisonment. 9. The counsel said the Officer Commanding Station (OCS) had already informed her that the investigation file is available at Runyenjes Police station and that witnesses can be traced. It was therefore the counsel's proposal that a retrial be ordered. 10. In support of her submission, the respondent relied on the case of SAID YUSUF MAKANZU VS REPUBLIC Mombasa HC Criminal Application No. 53 & 105 of 2004. 11. The respondent further argued that the rights of the appellant must be balanced with those of the victim as was held in the case of JOHN KARANJA WAINAINA VS REPUBLIC Court of Appeal Criminal Application No. 15 of 1990. 12. In a case like this one where the court file has gone missing without a trace, the court must interrogate the occurrence of the loss as to whether someone is likely to benefit from it. In this case, the appellant is likely to benefit from the loss and also from an order of acquittal if it has to be made by this court. The victim who was a seven year old girl at the time of the trial would be the loser for she would be left “home and dry” without justice.
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13. There is, therefore, a great probability that the person likely to benefit from the loss may have been involved in the loss of the file. I make this observation with great exception regarding the appellant for there is no evidence before me to that effect. 14. I am in agreement with the State that “an acquittal should not follow as a mater of course where the file has disappeared” as was held by the court of appeal in the John Karanja case (supra). The appellant is a convict serving sentence who has already lost the presumption of innocence. 15. It would not be in the interests of justice to solely consider the appellant's rights for expeditious disposal of the appeal or for acquittal and ignore the rights of the victim. 16. The appellant has been in prison for five years now and was sentenced to serve life imprisonment. I am fortified by the fact that the investigation file is available and that the witnesses are traceable. I am convinced that a retrial would therefore serve the interests of justice for both parties. 17. For the foregoing reasons, I hereby quash the conviction and sentence in Runyenjes Criminal Case No. 560 of 2011 and hereby order retrial before a different magistrate at Runyenjes Court to be concluded within three (3) months. 18. The appellant shall be remanded in prison custody pending taking of plea. 19. It is hereby so ordered. DELIVERED, DATED AND SIGNED AT EMBU THIS 7TH DAY OF NOVEMBER, 2017. F. MUCHEMI JUDGE In the presence of:Applicant present in person Ms Manyal for respondent
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