Joseph s/o Masumbuko v. R., (and seven other appeals), Crim. App.. 243-A-71, 6/10/72.

 

Joseph s/o Masumbuko v. R., (and seven other appeals), Crim. App.. 243-A-71, 6/10/72.

            BRAMBLE, J. These appeals have been consolidated as they have one common factor. Because of a fire at the Court House, Moshi, the records have been destroyed and there are no notes of evidence by which the judgments could be assessed. In most of these cases the appellants have completed or almost completed the terms of imprisonment.

            While the judgments may be sound the absence of the notes of evidence and the exhibits is likely to prejudice the appellants in the prosecution of their appeals.  In  R. v. Abdi May and others, (1948) 15 E.A.C.A. 86 the Court of Appeal held that in such circumstances a new trial ought to be ordered but in the particular case declined to do so as the appellants had served or nearly served the terms of imprisonment laid down in default of the payment of the fines imposed. In another case Haiderali Lakhoo Zaver v. R. (1952) E.A.C.A. 244 when the record was lost before the hearing of the appeal before the High Court of Kenya a Judge ordered a retrial and this was upheld by the Court of Appeal and part of the judgment reads: “The Courts must in this matter try to hold the scales of justice evenly between the parties, and, whilst no wholly satisfactory solution can be expected for such an unsatisfactory state of affairs as this appeal disclosed, we think that the course followed by the learned Judges in first appeal was on the balance the fairest and most just, and is the only solution which offers an opportunity for a judicial determination on the merits of the case.”

            It is not possible to judicially assess the merit of these appeals without the notes of evidence and exhibits and the Petitions of Appeal cannot be a proper guide, more particularly as they are prepared by laymen. It would be unjust to base any decision on these taken together with the judgments only I will, therefore, be guided by the two cases cited above. I note that –

(a)  In appeals No. 243/71, 244/71, 312/71 and 434/71 the appellants have

Completed the terms imposed on them.

(b)  in appeals No. 13/72, 59/72 and 61/72 the appellants have almost

Completed the terms imposed on them;

(c)  In appeal No. 382/71 the fine has been paid; and

(d)  In appeal No. 409/71 and 410/71 the appellants have served only a small portion of the sentence.

I allow the appeals in all the cases mentioned in (a) and (b) above, quash the convictions against each of the appellants and order these who are still in custody to be immediately released.

            As to (c) and (d) I order that there be a new trial soon as possible as no injustice is likely to occur. It a conviction is secured in (d) an application can be immediately made to the competent authority for remission of part of the minimum sentence.