For the past 12 years, Sylas Mutawali has been frequenting the Mombasa law courts, hoping for the conclusion of a criminal case in which he was accused of stealing Sh200,000 from his employer.
The case started in 2010 when he was arrested and charged with the offence of stealing from a hotel where he worked as a cashier.
The matter was heard by Principal Magistrate Elvis Michieka, who heard evidence from most of the witnesses save for a few who failed to show up.
The magistrate was scheduled to deliver a ruling in December 2012, but he was transferred from Mombasa. This marked the beginning of Mutawali’s long wait for justice because the case file disappeared when the magistrate was moved.
Years after he left, Mr Michieka was sent back to Mombasa, but he died in 2020 before any progress was made in locating the file.
Mr Mutawali has written several letters to the court, requesting that the file be traced so that his case can be concluded, but to no avail.
Through his advocate, Mathew Nyabena, Mr Mutawali has written to Chief Justice Martha Koome to intervene so that the matter is put to rest.
He claimed that his visits to the Mombasa Law Court registry to trace the file are still unsuccessful and that his letters to the the Judiciary have not been answered.
“The criminal justice system has left our client literally on the high seas without any hope of the justice ship docking any time soon.
The Office of the Director of Public Prosecutions has also not been helpful,” said the lawyer’s letter.
Mr Mutawali is concerned because, according to the Directorate of Criminal Investigations (DCI), he still has a pending criminal case.
“I cannot get a police clearance certificate because of this. When I was arrested, my personal details, including my fingerprints, were taken,” he said.
With a pending case and a missing file, Mr Mutawali said it has been difficult to get a certificate of good conduct.
The advocate further said that Mr Mutawali’s case is not unique, and that many litigants have given up hope of ever getting justice.
“It behooves your office and copied constitutional offices to take administrative and policy steps to ensure that justice and judgments are delivered without undue delay in an open and transparent manner,” he said.
While pleading with Justice Koome to intervene, Mr Nyabena noted that delays in delivering judgments and rulings are a major problem that the Judiciary needs to address in order to have a robust and accountable system to track delivery of longstanding verdicts.
“Our clients reserve the right to take such other further action for remedies for breach of his constitutional rights. This letter serves as a notice of intention to file action for breach of our client’s constitutional rights,” said Mr Nyabena.
The letter is copied to the Judicial Service Commission (JSC), Director of Public Prosecutions Noordin Haji, Attorney General Kariuki Kihara, and the Law Society of Kenya representatives to the JSC.
Last November, Mombasa Resident Judge John Mativo requested DCI George Kinoti to investigate the mysterious disappearance of files after it emerged that several of the documents had gone missing from the registry.
“It cannot be business as usual. How can the court administer justice when the blame on the lost files lies squarely at its doorstep?” the judge asked in a ruling he delivered last year.
Justice Mativo said the menace, if not checked and eliminated, can become the bane of the justice delivery system in the country.
