[2014] KEHC 3939 (KLR)
The High Court determined that to safeguard the applicant's constitutional right to a fair trial, the proceedings in the lower court should be stayed pending the outcome of the appeal concerning the refusal to order a DNA test. The court held that the issue of whether a DNA test should be conducted is best left to...
Source-derived case information.
- Citation
- [2014] KEHC 3939 (KLR)
- Parties
- Applicant: E W N; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 72 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Interim Stay Pending Appeal
- Outcome
- Application for stay of proceedings granted.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Child Neglect, Dna Testing, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E W N
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interim Stay Pending Appeal
Legal Issues
- 1 Whether the proceedings in the lower court should be stayed pending the determination of the appeal regarding the refusal to order a DNA test.
- 2 Whether denying the DNA test would infringe the applicant's right to a fair trial.
Ratio Decidendi
The High Court determined that to safeguard the applicant's constitutional right to a fair trial, the proceedings in the lower court should be stayed pending the outcome of the appeal concerning the refusal to order a DNA test. The court held that the issue of whether a DNA test should be conducted is best left to the appellate court, and that proceeding with the trial before resolving this issue could prejudice the applicant's defence. Therefore, a stay of proceedings is necessary to ensure that the applicant is not denied the protections afforded by Article 50 of the Constitution.
Court Disposition
Application for stay of proceedings granted.
Orders
- Criminal Case No. 283 of 2014 before the Chief Magistrate at Kibera is stayed pending the determination of the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL DIVISION
MISC CRIMINAL APPLICATION NO. 72 OF 2013
E W N …………………….......................…… APPLICANT
VERSUS
REPUBLIC ……………………………………RESPONDENT
(From the original Criminal case No. 283 of 2014 of the Chief Magistrate’s court at Kibera before Mr. Opande, Senior Resident Magistrate)
RULING
The applicant E W N has been charged in the lower court with the offence of child neglect contrary to Section 127 (1) (a) as read with Section 127 (1) (b) of the Children Act No. 8 of 2001. She then applied before the learned trial magistrate to order a DNA test be conducted on the father of the child to determine if he was the biological father of the child.
In his ruling the learned trial magistrate declined the request giving rise to an appeal by the applicant. In the meantime, an interim stay was sought and granted pending the hearing of the said appeal. Both learned counsel have filed submissions to address the application and cited some authorities.
It is the applicant’s case that the charge facing her will either stand or fall on the result of the DNA test which the Police ought to have conducted before charging her. The application is opposed by the state upon the submission that the applicant has not demonstrated the nexus between an oder for a DNA test with the present case.
I have considered the charge against the applicant alongside the submissions made by both learned counsel. I am of the view that the proceedings in the lower court should be stayed so that the applicant is not denied a fair trial as guaranteed under the Constitution and in particular Article 50 thereof.
Whether or not the DNA test will be allowed should be left to the court that will handle the appeal lodged by the applicant. Accordingly, Criminal Case No. 283 of 2014 before the Chief Magistrate at Kibera shall be stayed pending the determination of the appeal.
Orders accordingly.
SIGNED DATED and DELIVERED in court this 25th Day of June 2014.
A.MBOGHOLI MSAGHA
JUDGE