Factors to be considered when Court Records are missing in a Criminal Appeal

Justus Cheruiyot Chumba v Republic

High Court of Kenya at Kericho

Misc. Criminal Application No 7 of 2016

December 5, 2016

M Ngugi J

Reported by Phoebe Ida Ayaya

Criminal Procedure – acquittal - lost court records - whether an acquittal would follow as a matter of course for the Appellant where files and court records have disappeared - merit of appeal

Criminal Procedure - retrial – circumstances in which a court will consider a retrial – whether the High Court was the appropriate forum for raising the issues of the missing court records – whether appeal had merit

Brief facts

According to the Applicant, he was charged with the offence of robbery with violence contrary to section 296 (2) of the Penal Code in Kericho Criminal Case No. 1023 of 2002. He was tried and convicted on September 20, 2002 of the said offence and sentenced to death. He then lodged Criminal Appeal No. 56 of 2002 that was heard and dismissed by a two-judge bench of the High Court sitting in Nakuru on February 15, 2007.  The Applicant stated that he then lodged his second appeal to the Court of Appeal on February 26, 2007 and filed a supplementary petition of appeal on October 13 2008

In his application dated April 16, 2016, the Applicant sought orders that his conviction be quashed, the sentence against him set aside, and that he be discharged. The basis of his application was that the delay of 9 years in the hearing of his second appeal before the Court of Appeal was an infringement of his right to fair hearing, and amounted to torture and cruel and degrading punishment and was illegal, unlawful and unconstitutional.  He therefore asked the Court to exercise its original and inherent jurisdiction to protect his fundamental rights and freedoms and quash his conviction and sentence.

The Applicant complained that since 2007, his appeal had been pending as the records from both the trial court and the High Court have been missing and could not be traced, and all efforts to trace them have not borne any fruit. He argued that the right of appeal was a fundamental right that could not be taken away, and once a person lodged an appeal, the presumption of innocence until proven guilty resumed in the eyes of the law as long as the appeal was pending.

Issues                                             

i. Whether an acquittal would follow as a matter of course in an appeal from the lower courts for the Appellant where files and court records had disappeared

ii. Whether the High Court was the appropriate forum for raising the issue of the missing court records after an appeal from the lower courts

Held

1. Under article 50(2) (q) of the Constitution 2010, the right of appeal is one of the components of the fundamental right to fair trial guaranteed to an accused person. It provides that an accused person is entitled if convicted, to appeal to, or apply for review by, a higher court as prescribed by law.
2. Once the applicant appeals, the presumption of innocence under article 50 (2) (a) does not resume. He has been tried and convicted by a court of competent jurisdiction, and the High Court, having heard his appeal, dismissed it. While he was entitled to a second appeal, he could not be presumed innocent in the circumstances.  An acquittal should not follow as a matter of course where a file had 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 former Constitution, he having been convicted by a competent court and on appeal the burden was on him to show that the Court which convicted him did so in error.
3. What was evident from the outset was that the applications with regard to the loss of court records, and the consequences, was invariably made before the Court that was seized of the appeal.
4. There would be no automatic acquittal merely because all the records for the case have disappeared. In such a situation, the Court must try to hold the scales of justice and in doing so must consider all the circumstances under which the loss had occurred. In the final analysis, the paramount consideration must be whether the order proposed to be made in the one, which served the best interest of justice. The interest of justice as a whole must be considered.
5. The appropriate orders to make where court records were alleged to be missing was not an acquittal, for an Appellant had, by his conviction, lost the presumption of innocence. Rather, depending on the circumstances of the case, the appropriate orders to make were for a retrial.
6. The instant application was not the appropriate forum to determine the question of what should result as a consequence of the loss of court records that, according to the Applicant, had frustrated his ability to prosecute his appeal before the Court of Appeal.
7. The application came before the Court properly seized of the appeal. Where the appeal was pending before the High Court, it was the High Court which addressed its mind to the issue. Where both the lower court and High Court records were missing in an appeal pending before the Court of Appeal, the forum for addressing the question was the Court of Appeal.
8. The High Court had already heard and dismissed the Applicant’s appeal. He was properly convicted, and had upheld both his conviction and sentence. How could it then, properly, turn around and say “your fundamental freedoms have been violated as you are unable to argue your appeal against the decision of this court, and you are therefore free to go” that the arguments advanced by Counsel for the Applicant would lead to an absurdity and a travesty of justice.
9. The only court properly vested with the jurisdiction to deal with an application, and to make appropriate orders and directions was the superior court to which an appeal against the decision of the High Court had been preferred and was pending. It was not the High Court. The High Court, in so far as the present applicant/appellant was concerned, was functus officio.

Application dismissed: -

i) The preliminary issues raised by the DPP must be resolved in favor of the State.

ii) The application dated April 16, 2016 for orders of conviction and sentencing to be quashed was struck out.

iii) An appropriate application be filed before the Court of Appeal before which the Applicant alleged he lodged his Civil Appeal No. 113 of 2007.