DCI called in to probe missing files in Mombasa's court registry

A Mombasa judge has asked the Directorate of Criminal Investigations to investigate the mysterious disappearances of court files.

“It cannot be business as usual. How can the court administer justice when the blame on the lost files lies squarely at its doorstep?” said Mombasa Resident Judge John Mativo.

Justice Mativo directed the court’s deputy registrar to write to the DCI in Mombasa and “lodge a complaint regarding the disappearance of the court file” and request an investigation to establish how it happened and what legal action could be taken.

He also ordered that a copy of his ruling be sent to the Director of Public Prosecutions, saying the findings would have an impact on the criminal justice system.

A court document seen by the Nation indicates that there are many cases where a file is listed for a hearing but it could not be traced for the trial to proceed.

In other circumstances, warrants of arrest have been issued and executed but the files disappeared. This is a common problem in lower courts. 

The High Court, the Environment and Land Court and Employment and Labour Relations Court do not experience this problem.

The judge encountered the problem of missing files when dealing with an appeal filed by robbery-with-violence convict Patrick Randu Yeri.

Yeri was convicted on June 30, 2010 and sentenced to death.
A month later, he appealed against the conviction. The same day he lodged the appeal, the deputy registrar of the Mombasa court wrote to the chief magistrate seeking the original records, certified copies of the proceedings and the judgment.

This letter was followed up with several reminders to the lower court asking for the records, but all in vain. The records vanished and have not been found.

When the person in charge of the registry was summoned to the court, he said the file could not be found.

After four years of waiting for the records to be traced and provided, Yeri asked the High Court to intervene, lamenting his inability to proceed with his appeal due to the missing files.

Several orders were then issued requiring the deputy registrar to produce the file and supply it to Yeri and the DPP so that the appeal could be heard.

After eight years of push and pull, Yeri requested the court to acquit him because he could not proceed with his appeal.

“My constitutional right to a fair trial has been infringed. I have been unable to prosecute this appeal and I am not the one to blame,” he said.

But Justice Mativo rejected the petition, saying this would set a dangerous precedent in the administration of justice.

The judge said the absence of a trial court’s records does not necessitate an automatic acquittal because this amounts to condoning theft or disappearance of court files.

Justice Mativo, however, directed his anger at the court registry, noting that the cavalier way it treated Yeri’s matter, including unexplained failures to obey court summons, showed an entrenched and well-calculated move to erect barriers to the administration of justice.

“The court process will be seen as lending themselves to oppression and injustice if courts were to tolerate disappearance of its records. How can a fair trial be guaranteed when court proceedings vanish in the hands of those obligated by law to protect them?” the judge said.

The disappearance of court records, he said, constitutes a serious assault on the integrity of courts that also erodes public confidence in the administration of justice.

Last month, the High Court had to acquit a 52-year-old man who defiled and made his niece pregnant after his file disappeared from Kwale court registry.

NKK, who had been behind bars for 11 years, secured his freedom after numerous attempts to find the court and police files failed.

“In my view, there is no likelihood that the trial court’s proceedings will ever be found,” Justice Eric Ogola said when he released the man.

The missing court records meant that the man could not appeal against a life sentence imposed on him in 2012 by a magistrate court in Kwale.

The judge noted that the convict had the right to appeal but because of a court mistake, he could not do so.

“I am satisfied that this is a proper case in which to exercise the discretion of this court to release the appellant. Accordingly, he is hereby set free and released from prison unless otherwise he is lawfully withheld,” Justice Ogola said.

NKK was tried on the offense of incest. The trial magistrate found him guilty and sentenced him to life imprisonment.

[email protected]