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Court of AppealOtherCriminal Appeal No. 49 of 2006

Isaiah Mutuma Alias Duncan Murithi v Republic [2013] KECA 120 (KLR)

Court of Appeal of Kenya
22 November 2013
PKP. Kihara KariukiPhilomena Mbete MwiluP.M. MwiluWilliam OukoW. Ouko
1,548 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that a lost or tampered court record does not automatically free a convicted person—instead, courts order whatever best serves justice.

What this practically means

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Executive summary

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The applicant, Isaiah Mutuma alias Duncan Murithi, was convicted of robbery with violence under section 296(2) of the Penal Code and sentenced to death. His first appeal to the High Court (Lesiit and Ochieng JJ) was dismissed on 8 March 2005, and he filed this second appeal in 2006. The appeal could not be heard because the record was compromised: the appellant's statement under inquiry was missing, the charge sheet and other documents were illegible, pages were missing from the records held by counsel and State Counsel, and the court record itself appeared improperly compiled, prompting an investigation into possible falsification. The Deputy Registrar, High Court reported that she could not verify the correctness of the proceedings but held certified copies supplied by the Attorney General believed to be true copies. The applicant then moved, in a homemade notice of motion, for a stay of the appeal hearing and, ultimately, an order of retrial. Both counsel supported an order of retrial. The Court surveyed its consistent precedent — Heiderali Lakhoo & Zaver v Rex, John Karanja, John Ooko Otieno and Francis Ndung'u Wanjau — establishing that there is no automatic acquittal where records disappear or are falsified; the interests of justice as a whole govern. Finding the trial record intact and invoking section 381(2) of the Criminal Procedure Code, the Court remitted the judgment, order and trial record to the High Court for rehearing of the first appeal by a fresh bench excluding Lesiit and Ochieng JJ, and directed safe storage of the files. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court can entertain the appeal given the state of the original trial record (missing, illegible and possibly falsified documents)
  2. 2.What order serves the interests of justice where the record of appeal is hopelessly compromised — acquittal, retrial, or remittal for rehearing of the first appeal

Key legal issues

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01

Effect of a lost, incomplete or falsified trial record on a pending appeal

Holding

There is no automatic acquittal where records have disappeared or been falsified; the court must weigh all circumstances of the loss and order what best serves the interests of justice.

Reasoning

The Court surveyed its own precedent line — Heiderali Lakhoo & Zaver v Rex, John Karanja, John Ooko Otieno, Joseph Maina Kariuki and Francis Ndung'u Wanjau — showing a consistent approach: the appellant has lost the presumption of innocence following conviction, bears the burden of showing error, and the loss of the file may impair that burden but does not itself render him innocent. Responsibility for the loss matters: no one who caused or benefits from the loss may profit by it.

p. 3
02

Jurisdictional power to remit rather than order retrial or acquittal

Holding

Under section 381(2) of the Criminal Procedure Code, the Court on second appeal may remit the case and its judgment to the first appellate court for rehearing with directions; here, since the trial record was intact, remitting the first appeal for rehearing was the appropriate course rather than ordering a retrial de novo.

Reasoning

The Court found the trial court record intact and both counsel agreed on the remittal course. Rehearing the first appeal preserved the appellate structure without subjecting the appellant to a fresh trial, and directions were given for fresh typing of proceedings and empanelling of a new High Court bench excluding the original first-appeal judges, given the trial commenced in 2001.

p. 3

Legal principles established

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  • There is no automatic acquittal merely because court records have disappeared or been falsified; whatever order is made, the interest of justice as a whole must be considered.
  • On second appeal, under section 381(2) of the Criminal Procedure Code, the Court of Appeal may remit a case together with its judgment or order to the first appellate or subordinate court for determination, whether or not by way of rehearing, with such directions as it thinks necessary.
  • Where a fair trial or appeal cannot be had due to loss of the court file, the court must hold the scales of justice, considering all circumstances of the loss, who stands to gain from it, and whether any party may benefit from a situation of their own making.
  • An acquittal should not follow as a matter of course where a file has disappeared; the appellant, having been convicted by a competent court, bears the burden on appeal of showing error, and loss of the file alone does not restore the presumption of innocence.

Court orders

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  1. 1.The judgment and order of the High Court as well as the record of the trial court remitted to the High Court for the rehearing of the first appeal
  2. 2.The Registrar, High Court to make immediate and urgent arrangements for typing of the trial court proceedings and judgment before placing the matter before the Presiding Judge, Criminal Division for empanelling of a bench
  3. 3.The rehearing bench to exclude J. Lesiit and F.A. Ochieng JJ
  4. 4.The Registrars of the Court of Appeal and the High Court to ensure safe storage of the files

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PK
majority
Philomena Mbete Mwilu
P.M. MwiluJA
Currently serving
majority
William Ouko
W. OukoJA
Currently serving
majority
On appeal from
High Court of Kenya at Nairobi
HCCR.A No. 812 of 2005
Jurisdiction invoked
Section 381(2) of the Criminal Procedure Code (appellate jurisdiction over a first appeal from the High Court, second appeal to the Court of Appeal)

Relief refused

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Order for acquittal / setting the appellant at liberty on account of the lost or adulterated record

No automatic acquittal follows from loss or falsification of the record; the interests of justice as a whole must be considered

p. 3

Costs

No costs order made in the ruling.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is on the basis of that law that we now order that this judgment and order as well as the record of the trial court be and are hereby remitted to the High Court for the rehearing of the appeal.
p. 3Final orders — remittal of the first appeal to the High Court
The Registrar, High Court will make immediate and urgent arrangement of the typing of the proceedings and judgment of the trial court before placing the matter before the Presiding Judge, Criminal Division for the empanelling of a bench, which will exclude J. Lesiit and F.A. Ochieng JJ, to rehear the appeal
p. 3Final orders — directions on typing of proceedings and empanelment of a fresh bench
it is clear that the Court has consistently held that there is no automatic acquittal merely because all the records or part of them have disappeared or been falsified. It is thus established that whatever order has to be made, the interest of justice as a whole must be considered.
p. 3Binding rule on lost or falsified records
Any order arising from such a situation must be one that will serve the best interest of justice.
p. 2Guiding principle for orders on compromised records

Issues in the judgment

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minor

The judgment attributes reliance on Benson Ndirangu Ndungu to counsel, but the citationTreatment for Joseph Maina Kariuki is marked as cited by the court even though it is referenced by way of 'See also' following court-discussed authority — its exact provenance (court adoption versus party citation) is ambiguous.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Isaiah Mutuma Alias Duncan Murithi v Republic [2013] KECA 120 (KLR)", Case Analysis (2013). Criminal Appeal No. 49 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/120/eng@2013-11-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.