John Ooko Otieno v The Republic
Court of Appeal at Kisumu
 eKLR [www.kenyalaw.org]
Tunoi, Githinji & Otieno (JJA)
June 20, 2008
The courts must try to hold the scales of justice and in doing so, must consider all the circumstances under which the loss has occurred. Who stands to gain from the loss? Is it merely coincident that both the magistrate’s file and that of the police are lost? Does the available evidence point to anyone as being responsible for the loss? And if so, can such a party be allowed to benefit from a situation of his own making?
In final analysis, the question to be answered must be whether the order proposed to be made is the one which serves the best interest of justice.
We reject any proposition that in cases where a file has disappeared, and it is not reasonably feasible to order a retrial, an acquittal must follow as a matter of course.
After all a person who has been tried or has pleaded guilty before a court with competent jurisdiction and has been convicted by such court has lost the benefit of the presumption of innocence given to him by section 77 (2) (a) of the Constitution and on appeal the burden is on him to show that the court which convicted him did so in error.
The loss of the file may deprive him of the ability to discharge that burden, but it by no means follows that he must of necessity be treated as innocent and automatically acquitted. The interest of justice as a whole must be considered.”
This was an appeal to the Court of Appeal from the High Court in Kisumu. The appellant was appealing a death sentence handed down by the High Court at Kisumu after being convicted of murder.
The issue before the court in the hearing of this appeal was that the entire records and files containing the proceedings and judgment of the High Court, which was the trial court were lost and could not be traced.
Record of appeal
This appeal had actually come before the Court of Appeal previously but on that occasion, the court had ordered the Deputy Registrar to contact the police and the Attorney General’s office with a view to reconstructing the file.
Interestingly, whether by coincidence or not, the police file could not be traced. The prosecution’s file at the AG’s office could not be traced either.
All the court had in this appeal was the Notice of Appeal.
This pleading, albeit important, should be supported by a Memorandum of Appeal as well as the Record of Appeal which contains a copy of the proceedings.
None of these were provided by the appellant, on the ground, of course, that they were missing.
The appellant’s counsel, in submissions, attributed the blame wholly to the Kisumu High Court. According to her, it was the responsibility of the High Court to ensure that court files were securely stored in the registry.
State counsel on the other hand submitted that, as there was no judgement and no proceedings, this was not a competent appeal. Hence the only recourse was for the court to order a re-trial. The court anxiously considered the appeal.
The appellate judges stated that it was a common occurrence for court files to go missing at the registry. However, it was indeed a very rare occurrence for the police file and the prosecution file to be misplaced as well.
Further, the court stated that it was not automatic that when the court file went missing, an acquittal would ensue where a re-trial was not feasible.
In fact, the law was such that if a person has been tried, or he has pleaded guilty, and has been convicted, then he loses the benefit of the presumption of innocence granted to him by Section 77 (2) of the Constitution.
On appeal, the appellant must then show, in such circumstances, that the trial court which convicted him did so in error. In short, the interests of justice must be considered as a whole.
For instance, where in a similar case the prosecution witnesses are all dead, then the court would order an acquittal because a fair trial would not be possible.
In addition, the court took exception to the appellant’s counsel’s assertion that the High Court was to blame for the lost file.
Without evidence, the court was unwilling to attribute blame to the High Court, especially in view of the fact that the police and prosecution files were also missing.
In the court’s view, these circumstances pointed to a collusion. Therefore, it could not rule out the possibility of a conspiracy to enable a party to escape justice.
Because the state counsel submitted that a re-trial was possible because all the prosecution witnesses were from one locality, the court ordered that the conviction be quashed, the death sentence be set aside, and the appellant be re-tried.
However, he was to remain in custody for the duration of the new trial.