[2014] KEHC 6785 (KLR)
The court found that the applicant was already in lawful custody in respect of a separate criminal charge at Machakos Magistrate’s Court Case No 141 of 2011 during the period he alleged unlawful detention. The applicant admitted this fact and acknowledged that his continued detention was not solely due to the...
Source-derived case information.
- Citation
- [2014] KEHC 6785 (KLR)
- Parties
- Petitioner: Duncan Wambua Kimeu; Respondent: Director of Public Prosecutions
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 571 of 2013
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- application dismissed
- Judges
- DAS Majanja
- Legal Topics
- Pre Trial Detention, Right to Be Brought to Court, Remand Procedure, Disclosure of Material Facts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Wambua Kimeu
Petitioner
Director of Public Prosecutions
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the applicant's detention without trial for over three months violated his constitutional rights under Article 49(1)(f).
- 2 Whether the applicant was in lawful custody for a separate offence during the period in question, affecting the claim of unlawful detention.
- 3 Whether the applicant failed in his duty to disclose all material facts relevant to the application.
Ratio Decidendi
The court found that the applicant was already in lawful custody in respect of a separate criminal charge at Machakos Magistrate’s Court Case No 141 of 2011 during the period he alleged unlawful detention. The applicant admitted this fact and acknowledged that his continued detention was not solely due to the Makadara case. The court held that the applicant failed to disclose this material fact in his application, which was a critical omission. The duty to disclose all relevant facts is not diminished by the constitutional nature of the claim. As a result, the court dismissed the application, finding no violation of the applicant's constitutional rights under Article 49(1)(f) in the...
Court Disposition
application dismissed
Orders
- The applicant's application filed on 25th September 2012 is dismissed.
- The original court file shall be returned to Makadara Chief Magistrates Court.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 571 OF 2013
BETWEEN
DUNCAN WAMBUA KIMEU….…...…..…………..PETITIONER
AND
DIRECTOR OF PUBLIC PROSECUTIONS…... RESPONDENT
JUDGMENT
The matter before the court is an application by an accused in custody facing a robbery with violence contrary to Section 296(2) of the Penal Code in Makadara Criminal Case No. 1445 of 2014.
The applicant states that he was arrested on 23rd January 2011 and detained without trial up to 8th April 2011 for more than 3 ½ months. He states that this is a violation of his constitutional rights under Article 49(1)(f) of the Constitution.
I called for the subordinate court proceedings and from the charge sheet therein it states that the applicant was remanded at Machakos G K Prison facing a charge being Machakos Magistrate’s Court Case No 141 of 2011.
The applicant admitted that he had been arrested and charged with stealing in that case and was in lawful custody by the time he was taken to court on the second charge facing him. He admitted that even if he was released in the Makadara case, he would not be free by reason of the Machakos Case.
In my view, the applicant was less than candid and it is the duty of the applicant to disclose all material facts that bear on the subject matter.
This duty is not lessened merely because the issue is one of violation of Constitutional rights.
In the circumstances, the applicant’s application filed on 25th September 2012 is dismissed. The original court file shall be returned to Makadara Chief Magistrates Court and the applicant shall appear before the Court on 7th March 2014 for the mention of his case.
Orders accordingly.
DATEDandDELIVEREDatNAIROBIthis4th March 2014
D.S. MAJANJA
JUDGE