[2009] KEHC 1739 (KLR)
The court found that the applicant was not arraigned before court within the constitutionally mandated 14 days, thus his pre-trial constitutional rights were violated. However, the Constitution does not provide that such a violation automatically results in acquittal or quashing of charges. The appropriate remedy...
Source-derived case information.
- Citation
- [2009] KEHC 1739 (KLR)
- Parties
- Applicant: Erick Isiaho Mutsotso; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 5 of 2009
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Constitutional Application Regarding Pre Trial Rights
- Outcome
- Application partly allowed; declaration of rights violation but no acquittal or quashing of charges.
- Legal Topics
- Pre Trial Rights, Right to Liberty, Unlawful Detention, Compensation for Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Isiaho Mutsotso
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Constitutional Application Regarding Pre Trial Rights
Legal Issues
- 1 Whether the applicant's constitutional right to be arraigned in court within 14 days of arrest was violated.
- 2 Whether violation of pre-trial constitutional rights entitles the applicant to acquittal and quashing of charges.
Ratio Decidendi
The court found that the applicant was not arraigned before court within the constitutionally mandated 14 days, thus his pre-trial constitutional rights were violated. However, the Constitution does not provide that such a violation automatically results in acquittal or quashing of charges. The appropriate remedy for violation of pre-trial rights is a claim for compensation against the violators, not the termination of criminal proceedings. Therefore, while the applicant's rights were infringed, the criminal case against him should proceed to hearing.
Court Disposition
Application partly allowed; declaration of rights violation but no acquittal or quashing of charges.
Orders
- Declaration that the applicant's constitutional rights to be arraigned within 14 days were violated.
- Applicant is at liberty to claim compensation from the violators of his rights.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Miscellaneous Criminal Application 5 of 2009
ERICK ISIAHO MUTSOTSO …………....……………. APPLICANT
V E R S U S
REPUBLIC ………………………………………….. RESPONDENT
R U L I N G
In his application filed on 2nd January, 2009 the applicant seek orders that the violation of his fundamental Constitutional rights to liberty be determined. The application is brought under section 84 (1) and 77 (1) of the Constitution.
The applicant contends that he was arrested on 23rd September, 2006 at Ivatso village, Shinyalu division within Kakamega District. He stayed at the Kakamega Police Station for 4 ½ months until 5th February, 2007 when he was arraigned before court and charged with murder, vide High Court Criminal Case No.3 of 2007. The applicant further contends that his Constitutional rights were violated as he was to be arraigned before the court within fourteen (14) days from the date of arrest and that he should be released as the police contravened the law. He prays that this court “quashes the charge he is facing and declare them a nullity and he be set free forthwith.”
The State did not respond to the applicant’s contentions by way of replying affidavit. No explanation was given as to the correctness or otherwise of the applicant’s allegations. This being the case, I do find that indeed the applicant was not arraigned before court within 14 days as stipulated by the law. The applicant’s pre-trial Constitutional rights as enshrined in the Constitution were therefore violated.
Having found that the applicant’s Constitutional rights were violated, the next issue is whether the charge facing the applicant should be declared as a nullity and quashed resulting to the acquittal of the applicant. I do not find any provision in the Constitution which specifically states that a victim of violation of pre-trial rights should be acquitted of the charges facing him. Violation of the applicant’s rights does not automatically trigger acquittal. I am aware of the various decisions on this issue of violation of accused persons pre-trial rights but each case has to be determined on its own merit.
The only relevant Constitutional provision on this matter is section 72 (6) which allows victims to claim compensation from those persons who violated their rights. I therefore do find that the applicant’s Constitutional rights to be arraigned before court within 14 days from the date of arrest were violated. The applicant is at liberty to claim compensation from the violators of those rights. The High Court Criminal Case No. 3 of 2007 shall proceed for hearing. It is so ordered.
Delivered, Dated and Signed at Kakamega this 24th day of September, 2009
SAID J. CHITEMBWE
J U D G E