[2014] KEHC 4776 (KLR)
The court found that although the petitioner was detained for eight days before being brought to court, contrary to section 72(3)(b) of the Constitution, the issue is now moot. The proper remedy for such a violation is civil compensation, not the quashing of criminal proceedings or automatic release. The petition...
Source-derived case information.
- Citation
- [2014] KEHC 4776 (KLR)
- Parties
- Applicant: Edward Lwangu Mamboleo; Respondent: Principal Magistrate, Makindu Law Courts
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 305 of 2009
- Procedural Posture
- Judicial Review / Judgment
- Outcome
- petition dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Fundamental Rights Violation, Unlawful Detention, Right to Be Brought to Court, Criminal Procedure Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Edward Lwangu Mamboleo
Applicant
Principal Magistrate, Makindu Law Courts
Respondent
Procedural Posture
Judicial Review / Judgment
Legal Issues
- 1 Whether the petitioner's constitutional rights under section 72(3)(b) of the Constitution were violated by being detained for 8 days without being brought to court within 24 hours.
- 2 Whether the alleged violation warrants quashing of the criminal proceedings and release of the petitioner.
Ratio Decidendi
The court found that although the petitioner was detained for eight days before being brought to court, contrary to section 72(3)(b) of the Constitution, the issue is now moot. The proper remedy for such a violation is civil compensation, not the quashing of criminal proceedings or automatic release. The petition therefore lacked merit and was dismissed with costs to the respondent.
Court Disposition
petition dismissed with costs
Orders
- The petition is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
JUDICIAL REVIEW NO. 305 OF 2009 (MACHAKOS)
FORMERLY J.R. 537 OF 2009 (NAIROBI)
IN THE MATTER OF SECTION 84 (1)
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 72 (3) (B), CONSTITUTION OF KENYA
BETWEEN
EDWARD LWANGU MAMBOLEO ……………………………………… PETITIONER
AND
PRINCIPAL MAGISTRATE, MAKINDU LAW COURTS ....................... RESPONDENT
J U D G M E N T
The petition dated 7/9/2009 seeks the following orders:-
1. The Petitioner’s Constitutional rights under section 72 (3) of the Constitution in the matter ofMakindu Principal Magistrate’s Court case No. 60 of 2007, Republic versus Edward Lwangu Mamboleohave been grossly violated as the Petitioner was detained in the police cells for 8 days, instead of 24 hours without any explanation.
2. The trial of the Petitioner before the saidPrincipal Magistrate, Makindube quashed as a direct consequence of the gross violation of the Constitutional rights of the Petitioner undersection 72 (3) (b)of theConstitution.
3. The Petitioner be set at liberty forthwith unless otherwise lawfully held and all bail/bond deposits be returned/refunded.
4. Such other order as this Honourable Court shall deem just.”
It is averred in the affidavit in support of the petition that the petitioner was arrested and charged at the PM’s Court Makindu Criminal Case No. 60 of 2007 with two counts; that is stealing by servant contrary to section 281of thePenal Codeand with the 2nd count of giving false information to a person employed in public service contrary to section 129 (a) of the Penal Code. The Petitioner’s complaint is that he was detained at the police cells at Makindu Police Station from 14/1/2007 to 22/7/2007, a period of eight days instead of being produced in court within 24 hours under section 72 (3) (b) as provided of the then Constitution. However, that topic is now moot. The Applicant’s remedy lies in civil compensation. (See for example, Julius Kamau Mbugua –vs- Republic (Criminal App. No. 50 of 2008).
The upshot is that I find no merits in the petition and dismiss the same with costs.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 22ndday of May 2014.
………………………………………
B. THURANIRA JADEN
JUDGE