[2009] KEHC 1770 (KLR)
The court found that the applicants' constitutional rights under section 72(3) were violated as they were not arraigned within the stipulated 14 days. However, the Constitution does not provide for automatic acquittal or quashing of charges as a remedy for such violations. Instead, section 72(6) entitles victims to...
Source-derived case information.
- Citation
- [2009] KEHC 1770 (KLR)
- Parties
- Applicant: Chrispinus L. Elondanga; Applicant: Josphat Agoi Sahani; Applicant: Julius Elondanga Wingira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 36 of 2009
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Constitutional Application
- Outcome
- application dismissed
- Legal Topics
- Pre Trial Rights, Right to Liberty, Unlawful Detention, Compensation for Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chrispinus L. Elondanga
Applicant
Josphat Agoi Sahani
Applicant
Julius Elondanga Wingira
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Constitutional Application
Legal Issues
- 1 Whether the applicants' constitutional rights to be arraigned within 14 days of arrest were violated.
- 2 Whether violation of pre-trial constitutional rights entitles the applicants to acquittal and quashing of charges.
- 3 Whether the applicants are entitled to compensation for the violation of their constitutional rights.
Ratio Decidendi
The court found that the applicants' constitutional rights under section 72(3) were violated as they were not arraigned within the stipulated 14 days. However, the Constitution does not provide for automatic acquittal or quashing of charges as a remedy for such violations. Instead, section 72(6) entitles victims to claim compensation from those responsible for the violation. Therefore, while the applicants' rights were infringed, the appropriate remedy is a claim for compensation, not acquittal. The application to quash the charges was dismissed, and the criminal proceedings were ordered to continue.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicants are at liberty to claim compensation from the violators of their rights.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Miscellaneous Criminal Application 36 of 2009
CHRISPINUS L. ELONDANGA ..............1ST APPLICANT
JOSPHAT AGOI SAHANI .........................2ND APPLICANT
JULIUS ELONDANGA WINGIRA.............3RD APPLICANT
V E R S U S
REPUBLIC......................................................RESPONDENT
R U L I N G
In their application dated 6th April, 2009 the applicants seek orders that the violation of their fundamental Constitutional rights to liberty be determined. The application is brought under section 84 (1) 72 (3) and 77 (1) of the Constitution.
The applicants contends that they were arrested on 23rd October, 2005 and were kept in police custody until 8th December 2005 when they were arraigned before court and charged with murder, vide High Court Criminal Case No.39 of 2005. The applicants further contend that their Constitutional rights were violated as they were to be arraigned before the court within fourteen (14) days from the date of arrest and that they should be released as the police contravened the law. They pray that this court “quashes the charge they are facing and declare the charge a nullity and they be set free forthwith.”
The State did not respond to the applicants’ contentions by way of replying affidavit. No explanation was given as to the correctness or otherwise of the applicants’ allegations. This being the case, I do find that indeed the applicants were not arraigned before court within 14 days as stipulated by the law. The applicants’ pre-trial Constitutional rights as enshrined in the Constitution were therefore violated.
Having found that the applicants’ Constitutional rights were violated, the next issue is whether the charge facing the applicants should be declared as a nullity and quashed resulting to the acquittal of the applicants. I do not find any provision in the Constitution which specifically states that a victim of violation of pre-trial rights should be acquitted of the charges facing him. Violation of the applicant’s rights does not automatically trigger acquittal. I am aware of the various decisions on this issue of violation of accused persons pre-trial rights but each case has to be determined on its own merit.
The only relevant Constitutional provision on this matter is section 72 (6) which allows victims to claim compensation from those persons who violated their rights. I therefore do find that the applicants’ Constitutional rights to be arraigned before court within 14 days from the date of arrest were violated. The applicants are at liberty to claim compensation from the violators of those rights. The application is hereby dismissed. The High Court Criminal Case No. 39 of 2005 shall proceed for hearing. It is so ordered.
Delivered, Dated and Signed at Kakamega this 24th day of September, 2009
SAID J. CHITEMBWE
J U D G E