[2018] KEHC 2120 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISCELLANEOUS CRIMINAL APPLICATION NO. 91 OF 2018

1. GODFREY OSEMUDIAMEN AIGBIBIREMOLEN..........1ST RESPONDENT

2. JOHNBULL EROMOSELE AISBORI.................................2ND RESPONDENT

3. DAVDASH EWOO...................................................................3RD RESPONDENT

4. LIBERTY EBETENUDE........................................................4TH RESPONDENT

5. STEPHEN MERCY.................................................................5TH RESPONDENT

6. GIFT ASULUMA....................................................................7TH RESPONDENT

VERSUS

REPUBLIC...........................................................................................RESPONDENT

RULING

1. The applicants herein have through the provisions of Sections 356 and 357 of the Criminal Procedure Code Cap 75, Laws of Kenya, Articles 29 and 49 of the Constitution and all enabling provisions of the law moved this court for the following orders:-

(i) Spent;

(ii) Spent,

(iii) That there be a stay of execution of the order of the Hon. Ogwano (sic) of 21st September, 2018 which has caused the appellants to be detained in Mombasa Police Station (sic);

(iv) That the applicants herein be granted bail pending the hearing and determination of the intended appeal; and

(v) The costs of the application be provided for.

2. The application is anchored on the grounds on the face of it and the affidavit of Stephen Mercy, the 5th applicant who was duly authorized by her co-applicants to swear the affidavit filed on 25th September, 2018 on their behalf.

3. On 25th September, 2018, this court ordered for service of the application on the respondent and for the hearing of the application interpartes on 27th September, 2018.

4. Mr. Wairagu, Learned Counsel submitted that the applicants were arrested and charged in court for the offence of being in the country illegally. They were however discharged of the said offence after they produced their passports with valid visas.

5. It was stated that the Hon. Magistrate however gave orders for them to continue being held in custody. Counsel cited the case of Michael Rotich vs Republic [2016] eKLR where the court held that the Police should not arrest anyone for a longer duration than that provided in the Constitution of Kenya without being charged. He termed as unfounded the allegation that the applicants were being investigated to find out if their cell phones and computers had information linking them to commission of offences. He prayed for the applicants to be released.

6. Ms. Ogweno, Learned Counsel for the respondent was of the view that the applicants should have moved the court through revision as no trial was held in the lower court. She submitted that the applicants were taken to court on 21st September, 2018 and that under the provisions of Section 49 (1)(f) and (g) of the Constitution of Kenya, the reason for detention beyond twenty four (24) hours was explained to the court. She further stated that no holding charge was presented to the court although the decision cited by Counsel for the applicants stated that there must be a holding charge in order for a person to be detained by the Police.

7. In response to the foregoing submission, Mr. Wairugu stated that the applicants had properly moved the court by way of appeal and the application herein. He argued that under the provisions of Section 350 of the Criminal Procedure Code, an order can be appealed against. He reiterated that the applicants' mobile phones and computers were confiscated by the Police.

8. He stated that the provisions of Article 49 of the Constitution stipulate that persons arrested should be informed of the reasons why they were arrested and they should be charged. He prayed for the application to be allowed.

ANALYSIS AND DETERMINATION

The issue for determination is if the applicants are lawfully being held in custody awaiting investigations.

9. The applicants could have moved this court by way of revision but they opted to file an appeal and a miscellaneous application to challenge their detention in custody without any charges being leveled against them. They therefore sought an order to stay Hon. Ogweno’s Orders of 21st September, 2018 and for their release on bail pending appeal.

10. The applicants Counsel relied on the provisions of Article 29 of the Constitution which state as follows: -

“Every person has the right to freedom and security of the person, which includes the right not to be –

a) deprived of freedom arbitrarily or without just cause;

b) detained without trial, except during a state of emergency, in which case the detention is subject to Article 58. ”

11. He also relied on the provisions of Article 49 of the Constitution of Kenya on the rights of arrested persons, which stipulate as follows:-

“(1) An arrested person has the right-

(a) to be informed promptly, in a language that the person understands of –

(i) the reason for the arrest;

(ii) the right to remain silent; and

(iii) the consequences of not remaining silent;

(b) to remain silent;

(c) to communicate with an advocate, and other persons whose assistance is necessary;

(d) not to be compelled to make any confession or admission that could be used in evidence against the person;

(e) to be held separately from persons who are serving a sentence;

(f) to be brought to court as soon as reasonably possible, but not later than –

(i) twenty-four hours after being arrested; or

(ii) if the twenty-four hours ends (sic) outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day;

(g) at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released; and

(h) to be released on bond or bail, or reasonable conditions, pending a charge or trial, unless there are compelling, reasons not to be released; and

(2) a person shall not be remanded in custody for an offence if the offence is punishable by a fine only or by imprisonment for not less than six months.”

12. This court called for the lower court record and perused the same to glean the contents of the affidavit that was sworn in support of the application filed by the Office of the Director of Public Prosecutions before the said court. This court notes that the affidavit of No. 67094 Sgt. Moses Mathenge disclosed that the Police were investigating the applicants to establish if they had committed cybercrime. He therefore sought orders to have them detained at Central Police Station, Mombasa, pending investigations on whether or not their computers and mobile phones were connected to the commission of cybercrime.

13. In paragraph 9 of his affidavit, the Investigating Officer deposed that the applicants herein have no known social or community ties in Kenya and if prematurely released on bail/bond pending completion of investigations, they may take flight never to be found and therefore defeat the course of justice.

14. In paragraph 11 thereof, the deponent stated that information collected during investigations would be extended to the cybercrime expert in Nairobi who required at least two weeks to analyze the same.

15. The lower court proceedings indicate that the applicants were informed by the said deponent of the reasons they were being detained. This happened on 21st September, 2018 when the said deponent explained to Hon. Ogweno, Resident Magistrate (RM) the reasons why the Police needed to detain the applicants for a further period of time. Although the Prosecuting Counsel prayed to be granted 21 days, the Hon. Magistrate granted the Police 10 days to carry out their investigations. The applicants were to appear before the lower court on 8th October 2018.

16. This court has read the ruling in Michael Rotich vs Republic (supra) where Judge Kimaru stated that the arrest and arraignment of the applicant therein to court without any charge being preferred against him breached his fundamental right to liberty and freedom as provided under Articles 29(a) and 49 (1)(a)(i) of the Constitution of Kenya.

17. This court respectfully takes a different view from that taken by the Hon. Judge in the above decision. The provisions of Article 49(1)(g) provide that an arrested person has the right at the first court appearance, to be charged or informed of the reasons for his/her continued detention or to be released. This court has here before restated the proceedings of the lower court and that the applicants were informed of the reasons as to why they were arrested and the need for their continued detention pending investigations.

18. It is the finding of this court that the Hon. Magistrate by granting the prayer for continued detention of the applicants acted within the confines of the Constitution. The decision in Michael Rotich vs Republic(supra) was rendered by a court of concurrent jurisdiction and is therefore not binding to this court.

19. In Betty Jemutai Kimeiywa v Republic [2018], Muriithi J stated as follows on the interpretation of the provisions of Article 49(1)(g) and (h) of the Constitution of Kenya:-

“The provision bringing the accused before the court within 24 hours is not an either or else position where the prosecution is validated or invalidated by such presentation. Article 49 (1) (g) and (h) itself gives four scenarios on presentation of an arrested person before the court, namely, that the arrested person may-

i.be charged;

ii. be informed of the reason for the detention continuing;

iii. be released; and

iv. be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

So that upon being brought before the court, an arrested person may be charged; or he may be informed of the reasonsfor detention being continued say to facilitate completion of investigations or his presentation for assessment of fitness to plead before plea is taken; or he may be released if the court for example found no reasonable grounds for his continued detention; or he may be released on bond pending formal charge and or trial. The Constitution does not say that the police may only arrest a person when there is prima facie evidence of an offence. It must, of course, require a probable cause for an arrest but not prima facie case in its technical acceptation of evidence upon which a court may convict, if no evidence is given on behalf of an accused person".

20. I find the foregoing decision persuasive and applicable to the facts herein as Sergeant Moses Mathenge, the Investigating Officer appeared before the lower court and gave a probable cause for arresting the applicants. It is my finding therefore that the Hon. Magistrate exercised her discretion judiciously by making orders for detention of the applicants for ten (10) days pending investigations.

21. The said Investigating Officer was apprehensive that the applicants who are suspected to be Nigerian nationals would be a flight risk if they were released on bail/bond pending investigations.

22. The applicants' affidavit sworn on 25th September, 2018 by Stephen Mercy raises no new issue that was not canvassed before Hon. Ogweno. The applicants were given an opportunity to respond to the application before the said court.

23. The result of the application dated 25th September, 2018 is that it is hereby dismissed for being unmeritorious.

DELIVERED, DATED and SIGNED at MOMBASA on this 5thday of October, 2018.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Wairagu holding brief for Mr. Turunga for the applicants

Ms Oweno for the respondent

Mr. Oliver Musundi - Court Assistant