[2009] KEHC 2195 (KLR)
The court found that the applicant's constitutional right under Section 72(3) of the Constitution was violated by being detained for 32 days before being arraigned in court, as the respondent failed to provide any explanation for the delay. However, the court held that the Constitution does not provide for the...
Source-derived case information.
- Citation
- [2009] KEHC 2195 (KLR)
- Parties
- Applicant: Daniel Lutta; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 12 of 2009
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Constitutional Petition Regarding Violation of Rights During Pre Trial Detention
- Outcome
- Petitioner's rights were violated, but criminal proceedings to continue; applicant may seek compensation.
- Legal Topics
- Pre Trial Detention, Right to Fair Trial, Constitutional Rights Violation, Remedies for Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Lutta
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Constitutional Petition Regarding Violation of Rights During Pre Trial Detention
Legal Issues
- 1 Whether the applicant's constitutional rights under Sections 72(3) and 77(1) of the Constitution were violated by being held in police custody for 32 days before arraignment.
- 2 Whether the appropriate remedy for such violation is termination of the criminal case and release of the applicant, or compensation.
Ratio Decidendi
The court found that the applicant's constitutional right under Section 72(3) of the Constitution was violated by being detained for 32 days before being arraigned in court, as the respondent failed to provide any explanation for the delay. However, the court held that the Constitution does not provide for the automatic release of an accused person upon such a violation. Instead, the proper remedy is a claim for compensation as provided under Section 72(6) of the Constitution. The criminal proceedings against the applicant should proceed, and the applicant retains the right to pursue compensation for the violation of his rights. The right to a fair trial under Section 77(1) remains intact...
Court Disposition
Petitioner's rights were violated, but criminal proceedings to continue; applicant may seek compensation.
Orders
- Declaration that the applicant's rights under Section 72(3) of the Constitution were violated.
- Criminal case against the applicant shall proceed to hearing.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
MISCELLANEOUS CRIMINAL APPLICATION 12 OF 2009
DANIEL LUTTA -------------------------------------------------- APPLICANT
V E R S U S
REPUBLIC ------------------------------------------------------- RESPONDENT
R U L I N G
The Petition before this court is by the Petitioner who seeks orders to the effect that his Constitutional rights as enshrined in the Kenya Constitution specifically Sections 72 (3) and 77 (1) were violated and that this court upon finding that indeed the Petitioner’s rights were violated should terminate High Court Criminal Case No. 66 of 2003 and set the Petitioner free forthwith.
Mr. Athung’a, Counsel for the Petitioner, submitted that the Petitioner was arrested on 30/8/2003 and arraigned in court on 1/10/2003. The Petitioner was in police custody for 32 days. Counsel submitted that since the Petitioner was charged with a capital offence, he ought to have been arraigned before the court within 14 days and that Sections 72 (3) and 77 (1) of the Constitution were contravened.
The Petitioner’s counsel further submitted that upon finding that the petitioner’s rights were violated, the Petitioner should be set free. Counsel relied on the case of WEKESA SIKANGA VS REPUBLIC, KAKAMEGA HIGH COURT MISC. CRIMINAL APPLICATION NO. 8 OF 2008 and that of GERALD MACHARIA GITANKU VS REPUBLIC, COURT OF APPEAL CRIMINAL APPEAL NO. 119 OF 2004. The Respondent did not file and serve an affidavit in reply to the Petition within 14 days as required by rule 14 of the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the individual) High Court Practice and Procedure Rules.
The Petitioner is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The information is dated 1st October, 2003. It can be taken that the Petitioner was detained for 32 days as the respondent has not provided any information or explanation on the application by the Petitioner. I do therefore find that the Petitioner was not arraigned before the court within 14 days as provided by Section 72 (3) of the Constitution. This is a violation of the Petitioner’s rights and it is so declared.
The next issue for determination is whether the Petitioner should be set free forthwith and join his family in the building of our great Nation. It is clear that the Petitioner’s rights were infringed. However, it is unfortunate that there is no specific provision in the Constitution stating that upon finding that a Petitioner’s rights have been infringed, then the Petitioner should be set free. I am alive to the decisions by the Court of Appeal on this issue where Petitioners have been set free. However, the Constitution does not provide that a petitioner whose rights have been violated should be set free.
The important issue herein is what would have happened if the Petitioner was detained in Police custody for 32 days and thereafter released without being charged in court. I believe the Petitioner would still have had his right to pursue the violation of his detention by the police and this would be a claim for damages.
It therefore follows that the right to compensation for violation of one’s rights as provided by Section 72 (6) of the Constitution is the ideal, suitable and correct remedy in such a situation. With the prevalence of applications of this nature, there is need for parliament to elaborate on this issue. At times applicants arrested on a Friday and charged in court on a Monday of a non capital offence apply to the High Court for declaration that their rights to be brought before court within 24 hours were infringed. This will call for the courts to operate for 24 hours and throughout the week.
It is therefore my finding that the Petitioner’s rights to be arraigned in court within 14 days after arrest as enshrined in Section 72 (3) of the Constitution were infringed. However, that infringement would not lead to the setting free of the Petitioner. The Petitioner will be accorded a fair trial as provided by section 77 of the Constitution which trial should not be held to be unfair due to the detention of the Petitioner for more than 14 days. I do therefore find that the criminal case facing the Petitioner shall proceed for hearing and the Petitioner is at liberty to claim compensation from the Attorney General on behalf of the Police who infringed the Petitioner’s rights. It is so ordered.
Delivered, dated and Signed at Kakamega this 28th day of July, 2009.
SAID J. CHITEMBWE
J U D G E