1.The hearing of this second appeal has been hampered by an utterly wanting record of appeal. When it came up before us for hearing, the record comprised of a Notice of Appeal and various correspondence, but without the original or copies of the proceedings and judgments of the two courts below. How did we get here?
2.Briefly stated, Justus Cheruiyot Chumba (the appellant) was convicted for the offence of robbery with violence by the Kericho Principal Magistrate’s Court in Criminal Case No. 1023 of 2002 and sentenced to death. He lodged an appeal against both conviction and sentence in Kericho High Court Civil Appeal No. 56 of 2002. His appeal was dismissed by the High Court (Hon. Koome, J. (as she then was) and Hon Kimaru, J). on February 15, 2007.
3.Not one to give up, the appellant lodged the instant appeal on February 26, 2007. It is now 15 years and the appeal remains unheard. The reason, substantially, is that both the trial court record and the first appellate court record, save a copy of the judgment, are missing from the court registries. In what is a perfect storm, the Office of the Director of Public Prosecution is unable to trace copies of those records and so is the appellant.
4.Copies of various letters, which are in the record of appeal before us, give the impression that the court registries at the lower court in Kericho, and at the High Court in Nakuru, are completely unable to trace the missing records. Taking the view that the hearing of the appeal had delayed for an inordinately long time, the appellant moved this Court through a Notice of Motion dated February 13, 2017 for the following orders:1.That this Honourable court be pleased to declare that the pendency of the applicant’s second appeal for nine (9) years because of the missing file and records is an infringement of his right to fair hearing within a reasonable time.2.That this honourable court be pleased to declare that the confinement of the applicant in the circumstances amounts to torture and inhuman and degrading punishment hence illegal, unlawful and unconstitutional.3.That this honourable court be pleased to exercise its original and inherent jurisdiction to protect fundamental rights and freedom by quashing the applicant’s conviction and setting aside the sentence and consequently discharging the applicant and releasing him forthwith from his illegal confinement.4.That the honourable court be pleased to grant any other orders deemed expedient in the circumstances.
5.After considering that motion, this Court (Musinga, Kairu, and Murgor, JJ.A.), in a Ruling dated December 6, 2019 dismissed it and instead made the following orders;i.The Deputy Registrars of both the High Court and this Court are directed to present a report to this Court within 60 days of this ruling providing details of the movement and efforts made to trace the trial court and High Court files proceedings and exhibits.ii.Thereafter, the Criminal Appeal Number 113 of 2007 to be placed before this Court for directions on the hearing of the appeal.iii.No orders as to costs.
6.So as to confirm the progress made in the tracing of the records, the matter came up for mention before this Court. Things remain unchanged as the records had still not been traced. The Court nevertheless made the following orders on November 14, 2021:1)Criminal Appeal No 113 of 2007 be and is hereby directed to be listed for hearing and disposal and or for necessary action as deemed fit before any bench.2)The record in this Criminal Application No. Nyr 1 of 2017 be and is hereby directed to form part of the record in Criminal Appeal No. 113 of 2007 for ease of reference.3)Both the Deputy Registrar of this Court and that of the relevant High Court to comply strictly with the directions given in this Court’s ruling of December 6, 2019.4)The registry staff to ensure compliance with directions number 1, 2 and 3 above before the hearing of the appeal.
7.It is on the basis of those orders that the substantive appeal came before us for hearing. The appellant, through learned counsel Onesmus Langat, submits that this Court cannot hear this appeal because there is no record upon which it can proceed. He argues that as there is no evidence of his involvement or collusion in the loss of the records, then he should be set free. The appellant asks us to be persuaded by the decision of this Court in Criminal Appeal No. 53 and 105 of 2004 Joseph Maina Kariuki –vs- Republic.
8.In the alternative, the appellant requests this Court, in its discretion, to review the sentence to the 20 years already served and to proceed to set him at liberty as he will have paid his “debt” for the wrong he committed.
9.Miss Chelangat, learned prosecution counsel appearing for the Director of Public Prosecution, opposed the appeal but relied on written submissions dated 4th February, 2022 which addressed the merit of the appeal. We will not rehash those submissions because, as will be apparent shortly, we shall not be making a merit determination of this matter.
10.We have given the matter our anxious consideration. Fortunately, we do not find ourselves in unfamiliar territory as there have been past instances where records have disappeared in the course of pending appeals. This Court has pronounced itself on how to deal with such instances. In Joseph Maina Kariuki v Republic  eKLR Criminal Appeal Nos. 53 and 105 of 2004 (supra) the Court stated:
11.We agree that this is the correct way to approach a matter of this nature. To be emphasized is that an acquittal will not follow as a matter of course simply because a file has disappeared. Each case must be dealt with in its peculiarity. One instance where an acquittal will not follow is where the appellant himself is not blameless for the disappearance of the record. In this regard, this Court in John Maina Kariuki vs Republic  eKLR observed:
12.From the submissions made by his counsel, the appellant admits that he was supplied with the record of proceedings both of the Magistrate’s Court and the High Court, which he used to conduct his first appeal. He says that those copies have also disappeared without trace. The explanation proffered in the submissions is,
13.This statement from the bar does not sufficiently explain why the appellant does not have his copy of the proceedings. We are therefore unable to say that he is blameless for his predicament. Indeed, as there is no evidence that the prison authorities were to blame for the loss of the records, it is not possible to say that the loss of his copies is not attributable to him. Having taken this view, we are neither inclined to quash the conviction nor to review what is a lawful sentence. The order that commends itself to us is to direct that all persons involved (the court registries, the DPP) and not in the least the appellant must continue to look for the said proceedings. For now, the appeal will pend while a search for the records continues. Those are our orders.