1.The Appellant, Daniel Wekesa Wanjala, was tried and convicted by the lower court (M Kasera PM) for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. He was sentenced to life imprisonment on August 22, 2017.
2.He is aggrieved by the conviction and sentence and has preferred this appeal. In his written submissions filed on January 10, 2022, he has raised the issue of non-disclosure of the evidence of PW1, PW2 and PW3. This is the issue I wish to address in this ruling.
3.I have read the lower court proceedings. The lower court file SO Criminal Case No 13 of 2015 shows that the case was heard by two different magistrates with several other magistrates mentioning the case. M A Ochieng, SRM, started the trial. The handwriting of this judicial officer is illegible. I am not able to read a word in that handwriting. The second magistrate to handle the trial is M Kasera, PM, who took over the case from PW4 to the defence case and delivered judgment. The typed proceedings captured the evidence of PW4 to the defence but not that of PW1, PW2 and PW3.
4.It has become challenging for this court, sitting on appeal, to determine the appeal due to the gaps in the evidence. The evidence is available in handwriting, which I have stated is illegible. The illegible part of that handwriting is the evidence that is not available for purposes of this appeal and it is the reason why the Appellant is raising the issue I have mentioned above.
5.For the above reasons, this court is not able to determine this appeal until the gaps in the evidence are addressed. This can only be done by having the handwritten evidence received by M A Ochieng typed by a typist who can read and understand it. To enable the court sort out this issue, I will keep the determination of this appeal in abeyance to allow for the typing of the proceedings covered by the said judicial officer.
6.This matter shall be mentioned on February 20, 2023 to allow for the typing. It is so ordered.