[2018] KEHC 1770 (KLR)
The High Court held that while Article 50 of the Constitution, which guarantees fair trial rights, does not strictly apply to suspects in inquest proceedings, the principles of natural justice require that any person who is likely to be adversely mentioned in an inquest is entitled to be heard and represented by...
Source-derived case information.
- Citation
- [2018] KEHC 1770 (KLR)
- Parties
- Appellant: David Nyakwara Asiago; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 107 of 2018
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- DAS Majanja
- Legal Topics
- Inquest Procedure, Right to Counsel, Natural Justice, Cross Examination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Nyakwara Asiago
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether a suspect in an inquest is entitled to legal representation by counsel.
- 2 Whether the right to cross-examine witnesses extends to a suspect in an inquest.
- 3 Whether Article 50 of the Constitution applies to suspects in inquest proceedings.
Ratio Decidendi
The High Court held that while Article 50 of the Constitution, which guarantees fair trial rights, does not strictly apply to suspects in inquest proceedings, the principles of natural justice require that any person who is likely to be adversely mentioned in an inquest is entitled to be heard and represented by counsel. The court found that denying the appellant the right to legal representation and to cross-examine witnesses in the inquest would be contrary to the foundational right to natural justice. Therefore, the trial magistrate's ruling was set aside, and the appellant was granted the right to be represented by counsel of his choice at the inquest, including the right to...
Court Disposition
appeal allowed
Orders
- The ruling of the trial magistrate dated 2nd November 2018 is set aside regarding the appellant's right to engage counsel.
- The appellant, David Nyakwara Asiago, shall be entitled to be represented by counsel of his choice at the inquest and may cross-examine witnesses.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CORAM: D.S MAJANJA J.
CRIMINAL APPEAL NO. 107 OF 2018
BETWEEN
DAVID NYAKWARA ASIAGO....................APPELLANT
AND
REPUBLIC.................................................RESPONDENT
(Appeal from the decision and ruling of Hon. M.M Nafula – SRM
dated 2nd November 2018 at the Principal Magistrate’s Court
at Ogembo in Inquest No. 7 of 2018)
JUDGMENT
1. The subject of this appeal is an inquest at Ogembo Law Courts to inquire into the death of STELLAH BWARI ONDARI (deceased).
2. The magistrate hearing the inquest heard the application by Mr. Begi, Advocate for DAVID NYAKWARA ASIAGO to come on record for his client. In a ruling dated 2nd November 2018, the learned magistrate held that the rights under Article 50of the Constitution only apply to accused persons and not suspects as follows:
“Since the suspect has not been charged, I decline to allow Mr. Begi to come on record for him. However I allow the prosecution to bond David Nyakwara to court (sic) to testify before court and this court will cross-examine him if at all there will be need since this is an inquiry.”
3. At this juncture, I wish to point out that DAVID NYAKWARA ASIAGO had been charged with the murder of the deceased but charges and information was quashed under section 276(1) of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya) and an inquest preferred by the Director of Public Prosecutions.
4. While I agree with the learned magistrate that the provisions of Article 50 of the Constitution do not apply in the circumstances, it does not automatically follow that the advocate for a suspect or any person mentioned cannot have audience before the court in an inquest investigating the circumstances surrounding the death of the deceased.
5. As the trial magistrate pointed out, an inquest is defined as an official process to discover the facts about something bad that has happened. The duty of the court is to elicit facts and anyone who is adversely mentioned is entitled to be heard and represented by an advocate. This is a foundational right under the rubric of the right to natural justice since adverse consequences may flow not only from being mentioned adversely but also from the result of the inquest.
6. The duty of counsel in such instances will be to elicit more facts and indeed ensure that his client’s interests are taken care of. In other words, any party who is likely to be adversely mentioned and in this particular case, the petitioner, who was a suspect, is entitled to have his counsel participate in the inquest proceedings and that right includes the right to cross examine witnesses.
7. I accordingly set aside the ruling of the trial magistrate dated 2nd November 2018 regarding the petitioner’s right to engage counsel and order that the petitioner, DAUDI NYAKWARA ASIAGO shall be entitled to be represented by counsel of his choice at the inquest and who shall be at liberty to cross-examine the witnesses.
8. I have considered the proceedings and I do not find any basis to transfer the inquest to any other magistrate or court as there is nothing to show that the court is unfair or biased.
9. The petition is allowed on the terms I have set out. There shall be no order as to costs.
Dated and delivered at Kisii this 17thday of December 2018.
D.S MAJANJA
JUDGE
Mr. Otieno, Senior Prosecution Counsel, instructed by Office of Director of Prosecutions.
Mr. Begi for the Petitioner.