[2010] KEHC 2483 (KLR)
The court found that although the accused was held in police custody for more than 24 hours before being arraigned, the delay was explained by the prosecution as being due to the arrest occurring on a weekend, which made it impossible to bring the accused to court within the constitutional timeframe. The accused did...
Source-derived case information.
- Citation
- [2010] KEHC 2483 (KLR)
- Parties
- Applicant: Charles Muturi Chaura; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 17 of 2009
- Procedural Posture
- Constitutional Reference / Ruling on Reference From Subordinate Court Regarding Alleged Constitutional Rights Breach
- Outcome
- reference dismissed
- Legal Topics
- Right to Be Brought to Court Within 24 Hours, Unlawful Detention, Explanation for Delay in Arraignment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Muturi Chaura
Applicant
Republic
Respondent
Procedural Posture
Constitutional Reference / Ruling on Reference From Subordinate Court Regarding Alleged Constitutional Rights Breach
Legal Issues
- 1 Whether the accused's constitutional rights under Section 72(3) of the Constitution were breached by being held in police custody for more than 24 hours before being arraigned in court.
- 2 Whether the explanation provided by the prosecution for the delay in arraignment was reasonable and acceptable.
Ratio Decidendi
The court found that although the accused was held in police custody for more than 24 hours before being arraigned, the delay was explained by the prosecution as being due to the arrest occurring on a weekend, which made it impossible to bring the accused to court within the constitutional timeframe. The accused did not contest this explanation. The court held that the explanation was plausible and the delay was not inordinate. Relying on precedent, the court determined that a short delay with a reasonable explanation does not amount to a blatant breach of constitutional rights. Therefore, the reference alleging breach of constitutional rights was dismissed, and the subordinate court was...
Court Disposition
reference dismissed
Orders
- The constitutional reference is dismissed.
- The criminal case pending before the subordinate court shall proceed for hearing as scheduled without further delay.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Constitutional Reference 17 of 2009
CHARLES MUTURI CHAURA..........................................APPLICANT
VERSUS
REPUBLIC.................................................................................................RESPONDENT
RULING
Pursuant to the provisions of Section 67 (1)of the Constitution, the subordinate court placed the proceedings relating to NYERI C.M.C.CR. CASE NO. 2153 of 2006 to determine whether the constitutional rights of Charles Muturi Chaura, the accused therein, were breached. M/S Lucy Gitari, the learned Chief Magistrate, framed up the issues for the determination by this court.
When the reference came up for hearing, Mr. Wahome Gikonyo, learned advocate for the accused, urged this court to find that the accused’s constitutional rights underSection 72 (3)of the Constitution were breached. It is said the accused was arrested and kept in Police custody for more than 24 hours before being arraigned before a court of law. Miss Ngalyuka, learned Senior State Counsel,
urged this court to dismiss the reference because the delay to take the accused to court was explained in the replying affidavit of Lawrence Njagi, the investigating officer.
I have considered the rival submissions presented by both sides. It is not in dispute that the accused was arrested on 19th May 2006 and held in Police custody until 22nd May 2006 when he was taken for plea before the Chief Magistrate’s Court, Nyeri. The accused pleaded not guilty to the offences of Forgery and uttering a document with intent to deceive contrary toSections 349 and357 (b) of the Penal Code respectively. Under Section 72 (3)of the Constitution, the Police are allowed to detain such a suspect for not more than 24 hours. In this case, the accused was held in Police custody from 19th May 2006 and taken to court on 22nd May 2006. He was obviously held in Police custody for more than 24 hours. The prosecution have stated that the date of arrest fell on a weekend hence the accused could not be taken to court on time. The accused did not contest this assertion. I find the explanation given by the prosecution to be plausible. In any case the delay cannot be said to be inordinate so as one can declare that the accused’s constitutional rights were blatantly breached. In the
case of PAUL MWANGI MURUNGA =VS= REPUBLIC CR. APPEAL NO. 35 OF 2006 (unreported), the Court of Appeal statedinteralia:
“So long as the explanation proffered is reasonable and acceptable, no
problem would arise. Again the court might well countenance a delay of
say one or two days as not being inordinate and leave the matter at that.”
It is therefore obvious that the reference is for dismissal, which I hereby order. Let the case pending before the subordinate court proceed for hearing as scheduled without further delay.
Dated and delivered at Nyeri this 28th day of May 2010.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Kingori holding brief Mr. Wahome for the
accused. Makura for the state.