[2002] KEHC 348 (KLR)
The High Court found that the lower court failed to take appropriate action to prevent inordinate delay in the applicant's trial, as evidenced by the lack of record on the presence of witnesses and the absence of prosecutorial input on several hearing dates. The judge held that the lower court should have invoked...
Source-derived case information.
- Citation
- [2002] KEHC 348 (KLR)
- Parties
- Applicant: Emmanuel Kogwe; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 114 of 2002
- Procedural Posture
- Criminal Application / Interlocutory Application for Expeditious Hearing or Unconditional Release Due to Delay
- Outcome
- Application for unconditional release declined; directions issued for expeditious hearing and judicial oversight.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Pretrial Delay, Bail and Bond, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emmanuel Kogwe
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Interlocutory Application for Expeditious Hearing or Unconditional Release Due to Delay
Legal Issues
- 1 Whether the applicant's right to an expeditious trial has been violated due to inordinate delay.
- 2 Whether the applicant should be released unconditionally for lack of evidence or the case should proceed expeditiously.
Ratio Decidendi
The High Court found that the lower court failed to take appropriate action to prevent inordinate delay in the applicant's trial, as evidenced by the lack of record on the presence of witnesses and the absence of prosecutorial input on several hearing dates. The judge held that the lower court should have invoked the relevant provisions of the Criminal Procedure Code to ensure justice is not only done but seen to be done. However, the court declined to make any orders regarding the propriety of the proceedings at this stage, instead directing that the trial proceed as scheduled and that the trial court take appropriate measures if witnesses are unavailable. The matter was set for mention...
Court Disposition
Application for unconditional release declined; directions issued for expeditious hearing and judicial oversight.
Orders
- The trial to proceed as scheduled on 8th March, 2002.
- The trial court to invoke relevant provisions of the Criminal Procedure Code if witnesses are unavailable.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPLICATION NO 114 OF 2002
EMMANUEL KOGWE……………………………………APPLICANT
VERSUS
REPUBLIC………………………………………………RESPONDENT
R U L I N G
The applicant Kongwe Emmanuel first appeared in the Lower court on 27th March, 2001 charged with the offence of obtaining money by false pretences C/s 313 of the penal Code.
The record shows that the applicant is a foreigner and despite having been granted bond, he has remained in custody presumably because he has not been able to find a Kenyan Surity.
It is coming to almost 11 months now since the applicant first appeared in court but the hearing has not commenced.
There is now before me an application by the applicant complaining of inordinate delay and seeking orders that an expeditious hearing be ordered or that he be released unconditionally for lack of evidence.
I called for the original record which I have perused. The case has come up for hearing on several occasions. However the record is wanting as to what transpired on those days. The prosecutor is not shown as having any issue including the presence or otherwise of the witnesses.
The court made orders for further hearing dates without any comments whatsoever, with profound respect that is deplorable and disgraceful.
There are provisions in the criminal procedure code which ought to have been involved by the lower court to ensure that justice may not only be done but be seen to be done. This, the lower court did not do.
I have noted that the next hearing date is 8th March, 2002. For now I shall not make any orders relating to the propriety of the proceedings so far. I shall only direct that the case proceeds as scheduled on the said date and the trial court to invoke the relevant provisions of the Criminal Procedure Code in the event of non-availability of witnesses.
To ensure that no further delay is entertained, this application shall be mentioned again on 12th march, 2002 for further orders.
It is so ordered.
Dated and delivered at Nairobi this 19th day of February, 2002
A. MBOGHOLI MSAGHA
JUDGE