My ten years wait to appeal death sentence

By Evelyn Kwamboka

A man facing the hangman’s noose has waited for more than ten years to lodge an appeal.

This was after a magistrate’s court sentenced him to death, but his court papers went missing.

Joseph Maina Kariuki has been languishing in prison for more than ten years, and yesterday said his right to a fair trial has been compromised.

He said this when the State moved to court to oppose his application before the High Court’s Constitutional Reference Division in Nairobi.

Through his advocate Githu Muigai, he told a two-judge bench the disappearance of the court files was not his doing to warrant the suffering he has gone through.

High Court Judges George Dulu and Mohammed Warsame heard the resident magistrate, High Court and police records in two cases that led to his conviction and sentencing were missing.

"There cannot be any appeal because there is no record. By miracle, if the court registrar finds them, there will not be any application before the constitutional court," he said.

Court of Appeal

But the State told the constitutional court it had jurisdiction to hear the application because the same issues raised in it were pending before the Court of Appeal.

A resident magistrate’s court slapped the death penalty on Kariuki after it found him guilty of robbery with violence April 14, 2000.

He then lodged two appeals at the High Court in 2002, but they were dismissed on July 29, 2003.

Aggrieved by the dismissals, Kariuki filed a notice of appeal on August 8, 2003. On October 7, last year, the Court of Appeal directed the registry to keep looking for the missing court files. In his affidavit, Kariuki said his advocate has made several attempts to find the proceedings and records in the court registry to no avail.

"The High Court senior deputy registrar informed me both the High Court and lower court original records cannot be traced," he said.

He is seeking a declaration his right to a fair hearing within reasonable time and fair determination has been contravened.

He is also seeking an order he be released from prison.

The court will rule whether the constitutional reference application should be dismissed on February 11.