JOSEPHAT STANDA MATANDA & ANTHONY NYONGESA v REPUBLIC [2010] KEHC 568 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURTH OF KENYA AT BUNGOMA

CRIMINAL APPEAL NO.5 OF 1998

JOSEPHAT STANDA MATANDA )

ANTHONY NYONGESA)      -     APPLICANTS

VERSUS

REPUBLIC:::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(From the conviction and sentence by SPM in Bungoma Criminal

Case No. 386 of 1997)

JUDGEMENT

The appellants, Josephat Sitanda Matanda in Appeal No. 4 of 1998 and Anthony Nyongesa Wasike in criminal Appeal No.5 of 1998 were jointly charged with the offence of Robbery with violence contrary to section 296(2) of the Penal Code. They were convicted and sentenced to death as provided by law. They both separately appealed to this court in the appeals above mentioned which we hereby consolidate under Appeal No.5 of 1998.

The file records available to us however are very skeletal. They show that immediate effort to obtain the lower court file record was embarked upon from the start. The appellants persistently requested for the record to be availedto enable hearing of the appeals. The records further show that the records were never availed before this court. Not even after the appellants argued a formal application seeking for the record and notwithstanding the various orders of this court towards the same end.

The result is that the appellants have in the debacle been denied their right to be heard on appeal. Correspondences in the appeal file now show that all this effort has come to naught. There appears to be no further hope to recover or retrieve the same. The latest effort is contained in the letter of the Deputy Registrar dated 17. 6.2010 confirming that no hope of tracing the records is left.

There is knowing evidence to suggest that either appellant is responsible for the disappearance of the lower court record. Indeed the records confirm that they have done everything to remind the relevant authorities to avail the same. And yet the appeals have now got to be brought to some logical and / or reasonable end.

We have fully considered the circumstances in these appeals. We have come to the conclusion that the appellants’ appeals should not be left in limbo forever. We cannot condemn and put seal to the appellants’ present sentence of death when they have advertently been denied aright to be heard on appeal. We may not presently know whetheror not the appeals would succeed and the applicants set free .However we can not rule out such an event either .As the old legal maximum renders it , it were able to set free 99 possible offenders in a judicial process than possibly condemn one innocent person.

Our decision, which we hereby effect therefore, is to quash the conviction against each appellant and set aside the sentences of death. As the appellant have been in for about twelve years and the prospect of a retrial, in our view, is deam and possibly unlikely,, we order that each appellant be set at liberty from prison forthwith, unless they are therein lawfully held.

Orders accordingly.

Dated and delivered at Bungoma this 22nd day of July, 2010.

F. N MUCHEMID.A. ONYANCHA

JUDGEJUDGE