[2008] KEHC 2972 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII

Criminal Case 21 of 2005

IN THE MATTER OF CONSTITUTIONAL APPLICATION UNDER SECTION 65 OF THE CONSTITUTION BETWEEN

FRANCIS OGEGA MOCHAMA …………….....…….. APPLICANT

VERSUS

REPUBLICOF KENYATHROUGH

ATTORNEY GENERAL OF KENYA) ……..……… RESPONDENT

RULING

This ruling is in respect of an application dated 13th December 2007, which was brought by way of originating notice of motion under Sections 65, 72(3)and 77(1)(2) of the Constitution. The applicant urged the court to find that his constitutional rights had been, are being and are likely to be violated by the proceedings instituted by the state against him and proceed to acquit him of the charges of murder that he is facing.

In his affidavit in support of the application, he deposed that he was arrested on 17th February 2005 on suspicion of having committed murder but was not arraigned in court until the 7th of April 2005. He further stated that he spent more than fifty days at Kisii Police cells, as a result of which he suffered considerably. He alleged that he developed hypertension and annexed to his affidavit treatment notes in support thereof. Consequently, his constitutional rights to freedom of movement and fair trial had been violated, he stated. He urged the court to order his acquittal.

Alloys Otieno Kemo, Principal State Counsel in the office of the Attorney General based at Kisii swore a replying affidavit to the applicant’s affidavit. He sought to explain the delay in arraigning the applicant before court. He deposed that the subject file of this case namely Police file No.641/97/2005was forward to the Attorney General’s offices at Kisii on 9th March 2005 by the District Criminal Investigation Officer, (DCIO) Kisii. In the said letter, the police gave a brief account of how one Herbert Mobisa Nyakina (hereinafter referred to as “the deceased” met his death). He also explained how the applicant was arrested.

Mr. Kemo stated that the file was returned to the police on 15th March 2005 with directions that a public inquest be held to determine the cause of death of the deceased.

He further deposed that when deceased’s father learnt of the impending decision to release the applicant and hold a public inquest, he went to Mr. Kemo’s office and protested the decision on grounds that there were eye witnesses that saw the applicant assaulting the deceased. On 17th March 2007, Mr. Kemo wrote again to the DCIO and directed him to withhold the release of the applicant and re-submit the file for his perusal and further directions. Upon perusal of the file he formed the opinion that there was prima facie evidence to warrant the prosecution of the applicant on a charge of murder. Mr. Kemo was of the view that the complaints raised by the deceased’s father were justified and he caused the file to be placed before the Provincial State Counsel,

Mr. D. Musau, for his perusal and directions. Mr. Musau concurred with Mr. Kemo that the applicant should be charged with murder but in the event that he offered to plead guilty to manslaughter the offer should be accepted.

The Principal State Counsel further deposed that the DCIO, Kisii, had only one secretary on whom he depends to have all statements typed before police files are compiled. That caused some delay which was compounded by the fact that the applicant had to be examined by a doctor to determine his mental status before the charge of murder was preferred against him. He further stated the police department through out the country is overwhelmed with work and that often causes delay in compilation of murder case files.

The applicant filed a supplementary affidavit and stated that by the time his file was forwarded to the office of the Attorney General for advice, he had stayed in the police cells for more than fourteen days. He annexed to his affidavit, an abstract of the police investigation diary. He added that at one stage, the charge of murder was reduced to that of manslaughter in terms of a recommendation by the investigating officer but shortly thereafter, he was again charged with murder. In his view, the affidavit by Mr. Kemo did not sufficiently explain why there was such inordinate delay in arraigning him before a court of law.

Mr. Ondari for the applicant made submissions in support of the applicant’s depositions. He cited the Court of Appeal decisions in GERALD MACHARIA GITHUKU VS REPUBLIC , Criminal appeal No.119 of 2004 and ALBANUS MWASIA MUTUA VS REPUBLIC, Criminal appeal No.120 of 2004. Both appeals related to violation of the appellants’ constitutional rights and more so, Section 72(3) which provides as hereunder:

“72 (3) A person who is arrested or detained –

(a)for the purpose of bringing him before acourt in execution of the order of the court;Or

(b)upon reasonable suspicion of having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon asis reasonably practicable, and where isnot brought before a court within twenty-fourhours of his arrest or from thecommencement of his detention, or withinfourteen days of his arrest or detentionwhere he is arrested or detained uponreasonable suspicion of having committed orabout to commit an offence punishable bydeath, the burden of proving that the personarrested or detained has been broughtbefore a court as soon as is reasonablypracticable shall rest upon any personalleging that the provisions of thissub-section have been complied with.”

Mr. Ondari added that the respondent had not advanced any satisfactory explanation for the delay in arraigning the applicant before a court of law within the stipulated period of time. He urged the court to discharge the applicant.

Mr. Kemo for the respondent reiterated the averments contained in his affidavit. He stated that there were certain circumstances which make it impossible to bring a suspect to court within fourteen days from the date of arrest. He added that there was no deliberate intention to abuse the applicant’s constitutional rights as stated.

On the other hand, Mr. Kemo urged the court to consider the fact that the deceased’s constitutional right to life had been taken away by the applicant. As such, the applicant was not entitled to an automatic discharge upon proof of unwarranted delay in presenting him before a court of law. The applicant could sue for damages for breach of his constitutional right to personal liberty guaranteed by Section 72 of the Constitution.

The question of striking an appropriate balance between two conflicting constitutional fundamental rights often arises. In ALBANUS MWASIA MUTUA VS REPUBLIC (supra), the appellant was convicted and sentenced to death on a charge of attempted robbery with violence contrary to section 297(2) of the Penal Code. It was established that he had been held by the police for nearly eight months before he was arraigned in court. The Court of Appeal stated as follows:

“We must admit that the matter has caused ussome considerable thought and anxiety. On the one hand is the duty of the courts to ensure that crime, where it is proved, is appropriately punished; this is for the protection of society; on the other hand it is equally the duty of courts to uphold the rights of persons charged with criminal offences, particularly the human rights guaranteed to them under the constitution.”

After reviewing several cases all of which involved breach of appellants’ constitutional rights, the Court of Appeal had this to say:

“The jurisprudence which emerges from the caseswe have cited in the judgment appears to be thatan unexplained violation of a constitutional rightwill normally result in an acquittal irrespectiveof the nature and strength of evidence which maymay be adduced in support of the charge.”

The court allowed the appeal, quashed the conviction and set aside the death sentence that had been imposed.

My understanding of the above quoted passage from ALBANUS MWASIA MUTUA VS REPUBLIC is that where there is delay in arraigning an accused person before a court of law, the same must satisfactorily be explained, failing which the court will normally acquit the accused. I do not understand the court of Appeal to have laid down a general principle that where it is proved that an accused person is held by the police for any period exceeding that which is stipulated under Section 72(3)of the constitution, he should automatically be acquitted. My view is fortified by a later decision of the same court in ELIUD NJERU NYAGA VS REPUBLIC, Criminal appeal No182 of 2006 where the court delivered itself thus:

“---- it would be unreasonable to hold that anydelay must amount to a constitutional breach andmust result in an automatic acquittal ----.In Mutua’s case the prosecution had had anopportunity to explain the cause of the delay butfailed to offer an explanation. In the appealbefore us the ground raising the violation of theconstitutional right was raised only on themorning of the hearing when the court grantedleave to (Counsel) to file the supplementarymemorandum of appeal out of time. We are,accordingly, unable to hold that the prosecutionhad been given a reasonable opportunity toexplain the delay but had failed to take advantageof the opportunity and, therefore, thatthere was no reasonable explanation fordelay. Even Section 72(3) of the Constitution,which deals with the period of bringing anaccused person to court recognizes that therecan be a valid explanation for failure to bringan accused person to Court as soon asreasonably practicable. By filing theircomplaint about the delay only on themorning of the hearing the appellantclearly deprived the prosecution of anopportunity to offer an explanation, if any”.

The applicant herein has urged this court to terminate the murder charges which he is facing and has advanced the reasons therefor. The state is opposed to that move. In DAVID KAROBIA KIIRU VS REPUBLIC, High Court Miscellaneous Criminal Application number 863 of 2007 Ojwang J. posed the question:

“When, in law, should the High Court put an end tothe Constitutional function of trying criminalcases, as a state function authorized by law(S.26 of the constitution) of Kenya?”

The learned judge went on to answer the self-posed question as hereunder:

“It is clear that such a claim, when rested uponthe constitutional document itself, must bethought through carefully: because criminalprosecution is a public interest, governanceprocess, itself founded on the constitutionaldocument. So, if that process is, as hereinthe case, being challenged by citing the sameconstitution, then conflicts within theprovisions of the constitution become apparent:and in that case, it is within the jurisdiction of theHigh Court to interpret the constitution, and todeclare what its true meaning is. I hold,therefore, that the reading of a line, or a clause,or a section of the constitution [by itself] willnot be the answer, when such competing claimsemerge: it is for this court to declare the law ofconstitution, in those circumstances.”

In considering the application before me, it is imperative that I also address myself to the provisions of section 71(1) of the constitution. It provides as follows:

“71. (1) No person shall be deprived of his lifeintentionally save in execution of thesentence of a court in respect of acriminal offence under the law of Kenyaof which he has been convicted.”

The applicant herein is charged with murder. It is alleged that he murdered Herbert Mobisa Nyakina on 16th February, 2005. At this stage, can it be said with any finality that the applicant murdered the deceased? The answer is obviously in the negative. Only two witnesses have so far testified in the murder case. After being kept in unlawful police custody for nearly fifty days, the applicant was charged with murder.

While the murder charge was still pending before the High Court, the applicant offered to plead guilty to manslaughter and a charge of manslaughter was preferred against him. He was taken before a magistrate but when the charge was read out to him, he denied the same. The court released the applicant on a bond of Kshs.100,000/= and one surety of a similar amount pending trial.

While his family was making arrangements to comply with the terms of the bond and secure the applicant’s release from prison remand, the state withdrew the charge of manslaughter and decided to charge the applicant with murder.

Our law presumes an accused person to be innocent until proven guilty. It cannot therefore be said that the applicant deprived the deceased of his life.

The court is yet to establish what actually caused the death of the deceased.

What is manifestly clear is that for nearly 50 days, the applicant was being held by the police unlawfully. From the explanation that has been offered by the respondent through Mr. Kemo, I am not satisfied that there was any good reason for such inordinate delay. It appears to me that there was no agreement between the police and the Attorney-General’s office as to what charge the applicant was going to face. Some police officers and some state counsels wanted him charged with murder while others were for manslaughter and yet others did not want the applicant to stand trial at all, they preferred a public inquest into the cause of the deceased’s death.

Whichever way one looks at it, it was wrong for the police and the office of the Attorney General to unlawfully keep the applicant away from court as they continued to exchange correspondence. In MOHAMED VS ATTORNEY GENERAL & 3 OTHERS[2003] KLR 338, Etyang J; considering a similar matter as this one stated at pages 341 and 342:

“[The applicant] ought to have been informed ofthe reasons for her arrest in a language that sheunderstands. If she was arrested upon reasonablesuspicion of her having committed or being aboutto commit a criminal offence punishable by a termof imprisonment or fine, then she ought to havebeen taken to court within 24 hours, or anapprehension report ought to have been filed withthe court and the police officers concerned couldeven have gone to a court to seek authority tokeep her in police custody a little longer. This wasnot done.”

In FAN XI & OTHERS VS THE ATTORNEY GENERAL MISC. CRIMINAL APPLICATION NO.860 of 2007, Ojwang J, in a well considered ruling, set out the conditions that must be met by an explanation offered in terms of Section 72(3) (b) of the constitution. They are as follows:

(i)The explanation must carry elements of objective reasoning.

(ii)The explanation must make sense, in thelight of the special circumstances of the case.

(iii)the explanation must be made bona fide, andnot merely as a technicality in aid of the prosecution case.

(iv)The explanation should show such operationaldifficulty as may have prevented timeousarraignment of the suspect in court.

(v)The explanation should show clearly that thearresting authority did exercise genuineprofessional care in conducting theinvestigations preceding the arrest.

Looking at the explanation given by the respondent in this case, it is a far cry from the ideal explanation as set out hereinabove. The D.C.I.O. Kisii was forwarding the duplicate murder file for advice by the Senior State Counsel, Kisii on 8th March, 2005, having kept the applicant in custody since 17th February, 2005. What followed thereafter was like an act in a game of charades, seemingly, between two different teams.

I am satisfied that there was blatant transgression of the applicant’s guaranteed constitutional rights. No credible explanation for failure by the police to arraign the applicant before a court of law within the required time was offered. In the circumstances of this case, the applicant’s trial is a travesty of justice which cannot be countenanced by a court of law. Consequently, I quash the criminal charge of murder that has been brought against the applicant and order that he be set at liberty forthwith unless otherwise lawfully held.

DATED, SIGNED AND DELIVERED at KISII this 16th of April 2008.

D. MUSINGA

JUDGE.

Delivered in open court in the presence of:

Mr. Ondari for the Applicant

Mr. Kemo for the State.

D. MUSINGA

JUDGE.