A man who was sentenced to life imprisonment after he was found guilty of incest has been released after his file went missing.
NKK was released by judge Erick Ogola after it was evident the trial proceedings and the judgment had disappeared from the court’s registry and chances of their recovery were minimal.
In 2011, NKK was charged with defiling his brother’s daughter, who was 15 years old.
The girl is said to have become pregnant after the defilement.
The trial magistrate at the Kwale law court found NKK guilty of the charges and committed him to a life sentence in February 2012.
However, aggrieved by the decision, NKK filed a notice informing the High Court of his intention to appeal the sentence.
But records to allow for the appeal were nowhere to be found.
The High Court directed the Kwale court registry to trace the trial proceedings and avail them for the purpose of the appeal.
After years of push and pull between the High Court who were requesting the proceedings and the Kwale court registry, it became evident that the records might never be found.
The prosecution also could not get the records from the police file, as they could not be traced.
Judge Ogola said the matter had been pending in court since 2018 with no progress as the file containing proceedings and the judgment from the trial court could not be traced for more than five years.
He said the disappearance of the file was not NKK's mistake and he had a right to a fair trial, which included the right to appeal.
Ogola said holding the convict further without according him a fair trial would amount to a violation of his rights, and it was right for him to be released after spending 11 years in prison.
“There is no likelihood that trial court proceedings will ever be found. The appellant has the right to appeal. If he cannot exercise this right, then it is clear that his right to a fair trial would be breached. I am satisfied that this is a proper case in which to exercise the discretion of this court to release and free him,” he said.
Some of the grounds NKK wanted to appeal against included the failure by the prosecution to prove through DNA that the child born by the victim was indeed his.
Edited by A.N
