[2009] KEHC 1255 (KLR)
The court found that the applicant was detained for an extended period before being arraigned in court, in violation of section 72(3)(b) of the Constitution. The prosecution failed to provide any explanation for the delay, despite being given ample opportunity to do so. Consistent with established judicial...
Source-derived case information.
- Citation
- [2009] KEHC 1255 (KLR)
- Parties
- Applicant: Erick Sheba Otieno; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 2 of 2009
- Procedural Posture
- Criminal Revision / Ruling on Constitutional Application Regarding Pre Arraignment Delay
- Outcome
- acquittal
- Legal Topics
- Pre Trial Detention, Right to Be Brought to Court, Unlawful Detention, Fundamental Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Sheba Otieno
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Constitutional Application Regarding Pre Arraignment Delay
Legal Issues
- 1 Whether the applicant's constitutional right under section 72(3)(b) of the Constitution was violated by the delay in arraignment.
- 2 Whether unexplained violation of the right to be brought to court within the stipulated period warrants acquittal regardless of the evidence.
Ratio Decidendi
The court found that the applicant was detained for an extended period before being arraigned in court, in violation of section 72(3)(b) of the Constitution. The prosecution failed to provide any explanation for the delay, despite being given ample opportunity to do so. Consistent with established judicial precedent, the court held that such unexplained violation of the applicant's constitutional right to be brought to court within the stipulated period necessitates acquittal, regardless of the nature or strength of the evidence against the accused. The charge against the applicant could not stand in light of the constitutional breach, and he was accordingly acquitted and set at liberty...
Court Disposition
acquittal
Orders
- The applicant is acquitted of the charge of manslaughter.
- The applicant is set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT KISII
CRIMINAL REVISION 2 OF 2009
ERICK SHEBA OTIENO …………………..…….…………. APPLICANT
VERSUS
REPUBLIC ……………………………………………..…. RESPONDENT
RULING
The applicant was charged with manslaughter contrary to section 202as read withsection 205of thePenal Code.
The particulars of the offence were that on the 14th August, 2007 at Yokia Beach of Mfangano location within Suba District, the applicant unlawfully killed Gordon Otieno Oyega.
The applicant was arrested on 15th August, 2007 but was not arraigned in court until 8th October, 2007.
When the hearing of the case commenced, the applicant raised a constitutional issue relating to breach of his Fundamental Right as provided for under section 72 (3) (b)of theConstitution.
The learned trial magistrate forwarded the matter to this court for determination.
On 11th May, 2009, Mr. Kemo, Senior Principal State Counsel, sought an adjournment to enable him obtain instructions from the police. The application was granted and the hearing of the application was adjournment to 7th July, 2009. On that day the appellant was not produced in court.
When the application came up for hearing on 9th July 2009, Mr. Kemo informed the court that he had been waiting for instructions since May 2009 but the same were not forthcoming. The Court granted the Attorney-General 10 days within which to file his affidavit and the matter was set for ruling on 30th July 2009. Todate no affidavit has been filed.
It is not in dispute that the police violated the applicant’s constitutional right in failing to arraign him in court within the stipulated period of time in terms of the provisions of section 72 (3) (b)of theConstitution. This court and the Court of Appeal have repeatedly held that unexplained violation of an accused’s constitutional right will normally lead to his acquittal irrespective of the nature and strength of the evidence that may be adduced against him.
In the circumstances, the court holds that the charge against the applicant cannot stand and proceeds to acquit him of the same. The applicant is set at liberty unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT KISII THIS 17TH DAY OF SEPTEMBER, 2009.
D. MUSINGA
JUDGE.
17/9/2009
Before D. Musinga, J.
Nyangaga/Mobisa – cc
Mr. Kemo for the state
Accused – present
Court:Ruling delivered in open court.
D. MUSINGA
JUDGE.