Yeri v Republic [2023] KEHC 25453 (KLR)

Yeri v Republic (Miscellaneous Criminal Application E117 of 2023) [2023] KEHC 25453 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25453 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E117 of 2023

A. Ong’injo, J

November 9, 2023

Between

Patrick Randu Yeri

Applicant

and

Republic

Respondent

(Petition of Appeal being Mombasa High Court Criminal Appeal No. 312 of 2010 Criminal Miscellaneous Application 78 of 2014 )

Ruling

1. The Applicant herein was charged, convicted and sentenced to suffer death for the offence of robbery with violence contrary to Section 296(2) of the Penal Code Cap 63 laws of Kenya in Mombasa Chief Magistrates Court Criminal Case No. 2742 of 2009.

2. The Applicant appealed the decision in Mombasa High Court Criminal Appeal No. 312 of 2010 but the same has not been heard for lack of records of appeal from the trial court.

3. The Applicant in Misc. Application No. 78 of 2014 applied that since the records of appeal had not been traced and therefore he was unable to prosecute his appeal, the court should give such orders and directions as would meet the interest of justice as his constitutional right to fair trial had been infringed.

4. Mativo, J. (as he then was) in his ruling delivered on 3rd November 2021 held as follows: -“The applicant prays that this court allows his appeal on account of the “missing file.” Courts of law exist to administer justice and in so doing they must balance between competing rights and interests within the confines of law. However, the case of a convicted person lacks one of the strongest elements normally available to an accused person, namely, the presumption of innocence. Even though the law frankly recognizes the possibility of a conviction being erroneous or the punishment excessive, (a recognition which is implicit in the legislation creating the right of appeal in criminal cases), there is a presumption that the conviction was lawful until it is overturned by away of appeal. It follows that the mere fact that the record is unavailable is ipso facto not a ground to invalidate a conviction. The court should be careful not to set a dangerous trend of creating an avenue for allowing appeals in a manner not contemplated by the law. It can also amount to condoning theft or disappearance of court files. I am aware of court decisions allowing appeals under such circumstances which to me should be the exception rather than the rule otherwise such a trend would amount to opening a flood gate for “files to disappear.” To the extent that such an acquittal amounts to allowing an appeal without hearing it on merits as the law permits, it is a jurisdiction which is not expressly permitted by the law and must be exercised in the rarest circumstances with great care and circumspection. Historically, the high court, in addition to the powers it enjoyed in terms of statute, has always had additional powers to regulate its own process in the interests of justice. This was described as an exercise of its inherent jurisdiction. Freedman C J M, citing I H Jacob Current Legal Problems, adopted the following definition of ‘inherent jurisdiction”

5. Mativo, J. directed that investigations should be conducted into the disappearance of Mombasa CMCCR No. 2742 of 2009 by the DCI. The applicant’s application that the appeal be allowed on account the missing file was refused. The applicant’s appeal in High Court Criminal Appeal No. 312 of 2010 in Mombasa is still pending and his current application No. E117 of 2023 cannot be entertained unless and until the appeal is determined in one way or another.

6. As to whether or not the applicant is serving life imprisonment can only be confirmed from his committal warrant in prison. The application is therefore dismissed.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS, THIS 9TH DAY OF NOVEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -Ogwel- Court AssistantMr. Ngiri for the RespondentApplicant present in personHON. LADY JUSTICE A. ONG’INJOJUDGE