[2007] KEHC 3501 (KLR)
The appellants were detained for 65 days before being brought to court, in clear violation of Section 72(3) of the Constitution, which mandates that an accused must be brought before a court within 24 hours for bailable offences or within 14 days for capital offences. The prosecution failed to provide any...
Source-derived case information.
- Citation
- [2007] KEHC 3501 (KLR)
- Parties
- Appellant: Amos Njogu Wanjiku; Appellant: Irene Wamutira Murage; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 70 of 2007
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed; convictions quashed; appellants acquitted
- Legal Topics
- Manslaughter, Unlawful Detention, Right to Be Brought Before Court, Right to Interpreter, Violation of Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amos Njogu Wanjiku
Appellant
Irene Wamutira Murage
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellants' constitutional rights under Section 72(3) of the Constitution were violated by being detained for 65 days before being brought to court.
- 2 Whether the failure to indicate the language used during proceedings constituted a breach of the appellants' constitutional rights.
- 3 Whether such violations warranted acquittal regardless of the evidence adduced.
Ratio Decidendi
The appellants were detained for 65 days before being brought to court, in clear violation of Section 72(3) of the Constitution, which mandates that an accused must be brought before a court within 24 hours for bailable offences or within 14 days for capital offences. The prosecution failed to provide any explanation for this delay, thus not discharging its burden of proof. Additionally, the record did not indicate the language used during proceedings, further breaching the appellants' constitutional rights under Section 72(2) and Section 198 of the Criminal Procedure Code. In line with established jurisprudence from the Court of Appeal, unexplained violations of constitutional rights...
Court Disposition
appeal allowed; convictions quashed; appellants acquitted
Orders
- The appeal is allowed.
- The convictions are quashed and sentences set aside.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Criminal Appeal 70 of 2007
AMOS NJOGU WANJIKU…………………………….APPELLANT
VERSUS
REPUBLIC …………………...……………………..RESPONDENT
AND
Criminal Appeal 71 of 2007
IRENE WAMUTIRA MURAGE……………………….APPELLANT
VERSUS
REPUBLIC……………………….………………….RESPONDENT
(Appeals against conviction and sentence arising out of the Judgment of J. N. Onyiego Esq, Senior Resident Magistrate Kerugoya dated 2/5/2007 in Senior Resident Magistrate’s Court Criminal Case No.2/2005(Kerugoya).
JUDGMENT
(Consolidated)
The two appeals are consolidated for purpose of hearing having arisen from the same trial.
Both appellants were represented by Counsel Hon. Gacheru J. The appellants were charged with the offence of manslaughter contrary to Section 202 read with Section 205 of the Penal Code in main count and count 2 and count 3 all involving three deceased persons. They were tried and convicted on all 3 counts and sentenced to 15 years imprisonment on each. The petitions of appeal were drawn and filed by their advocate Hon. Gacheru.
In his submissions Mr. Gacheru submitted that the appellants were arrested on 24/1/2005 and for 65 days their constitutional rights were breached and no explanation was given why they were in custody for so long. Mr. Gacheru drew the attention to two decisions of Court of Appeal; Criminal Appeal No. 120 of 2004 and Criminal Appeal No. 119 of 2004.
Upon hearing these submissions Counsel for the Republic informed the court that he conceded the appeal on the ground of the opinion expressed in decisions of court of Appeal quoted. That the appellants were kept in custody for 65 days was not disputed. They were arrested on 21/11/2004 without warrants and were produced in court on 24/1/2005.
I have perused the authorities cited and it is clear the court is to enforce the provisions of Constitution, Section 72 (3) thereof specifies the periods within which a person may be detained before being produced before court as 24 hours for the bailable offences and 14 days in bailable offences namely those punishable by death. The burden of proving that the person arrested or detained has been brought to court as soon as is reasonably practicable shall rest on any person alleging that the provisions of the subsection (72 (3) ) have been complied with.
In the circumstances of this case the prosecution did not explain or discharge its burden. “The jurisprudence emerging now is that the unexplained violation of constitutional rights will normally result in an acquittal irrespective of nature and strength of evidence which may be adduced in support of the charge”Apart from the delay caused under section 72 (3), there is a complaint that the language used is not indicated on record. Section 72 (2) “a person who is arrested or detained shall be informed……. In a language that he understands the reason for his arrest or detention”Section198 CPC also demands that the interpreted of language is a right of accused failure to use language accused person understands is also a breach of his constitutional rights. Seeing that the state concedes this appeal and upon perusing the two Judgments of Court of Appeal, it is my finding that the appellants are entitled to be acquitted without considering more in view of the failure by state to explain the violation of the express provisions of constitutional.
The appeal is allowed and the Appellants shall be set at liberty forthwith unless otherwise lawfully held.
Dated this 19th November, 2007.
J. N. KHAMINWA
JUDGE
Mr. Gacheru:When the appellants are released in court it takes about 4 days to get out.
Order:The appellants shall be released forthwith otherwise the state may be found guilt of false imprisonment.
J. N. KHAMINWA
JUDGE
19/11/2007
Khaminwa – Judge
Njue – Clerk
Mr. Kimathi for State
Mr. Gacheru for both Appellants
Appellants – present.
J. N. KHAMINWA
JUDGE