[2017] KEHC 1788 (KLR)
The High Court found that the remand order detaining the applicant and accused for one week was disproportionate and unsupported by evidence. The prosecutor's suspicion was not substantiated by sworn testimony or material facts, and the purpose of interrogation could have been achieved by less intrusive means, such...
Source-derived case information.
- Citation
- [2017] KEHC 1788 (KLR)
- Parties
- Applicant: J A O; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 55 of 2017
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Remand Order
- Outcome
- remand order revised and set aside; applicant and accused released forthwith
- Judges
- DAS Majanja
- Legal Topics
- Remand Orders, Supervisory Jurisdiction, Right to Liberty, Criminal Investigation, Proportionality of Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J A O
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Remand Order
Legal Issues
- 1 Whether the remand order detaining the applicant and accused for one week was lawful and proportionate.
- 2 Whether the court had a reasonable basis to conclude that the applicant and accused were involved in the disappearance of the minor.
- 3 Whether less intrusive means could have achieved the purpose of the investigation.
Ratio Decidendi
The High Court found that the remand order detaining the applicant and accused for one week was disproportionate and unsupported by evidence. The prosecutor's suspicion was not substantiated by sworn testimony or material facts, and the purpose of interrogation could have been achieved by less intrusive means, such as requiring attendance at the police station without detention. The court emphasized that any limitation of liberty must be justified, proportionate, and based on reasonable grounds. Accordingly, the remand order was set aside and the applicant and accused were ordered released forthwith, subject to their cooperation with ongoing investigations.
Court Disposition
remand order revised and set aside; applicant and accused released forthwith
Orders
- The order of 23rd November 2017 remanding the applicant and accused is set aside.
- The applicant, J A O, and the accused, SOLOMON OORO OMOLLO, are released forthwith.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISUMU
CRIMINAL REVISION NO. 55 OF 2017
BETWEEN
J A O....................................................APPLICANT
AND
REPUBLIC........................................RESPONDENT
(Being revision of the order of Hon.B. Kasavuli, RM dated 23rd November 2017
in Criminal Case No. 21 of 2017 (SOA) at the Resident Magistrates Court at Winam)
RULING
1. This ruling is made under the supervisory jurisdiction of the High Court in criminal cases provided in sections 362 to 366of the Criminal Procedure Code. Section 362 specifically provides that:
362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
2. The applicant, J A O, moved this court through a letter by her husband, S A M, seeking to revise the order of the learned magistrate dated 23rd November 2017 where he ordered that:
J A O and the accused herein Solomon Ooro Omollo to be remanded at Kondele Police Station for the CID to interrogate them with a view to finding out ------- the whereabouts of the minor one CAM.
3. The case arises for a charge preferred against SOLOMON OOKO OMOLLO (“the accused”) for the offence of defilement. It was alleged that he defiled CAM, a child aged 16 years, on 1st September 2017 at [particulars withheld] in Kisumu County contrary to section 8(1) and (3) of the Sexual Offences Act, 2006.
4. The accused and J A O, who is the child’s guardian (“the guardian”’), were remanded in police custody after the prosecutor informed the court that CAM had disappeared and that she suspected that the accused and her guardian were involved. The prosecutor requested the court to remand the accused and guardian in order to aid the police in investigations to locate the child.
5. Both the guardian and accused told the court that they did not know where she is. The guardian explained that the child had left home when the accused was released on bond and she came home briefly and disappeared again.
6. The detention of any person by the Court is limitation of the right to liberty guaranteed under the Constitution. In limiting such liberty, the court must be take a course that ensures that the means so adopted to achieve the purpose of the limitation is least intrusive. In this case, purpose of the detention was on an allegation that the accused and guardian were involved in disappearance of the child. The statement made by the prosecutor was not given on oath and could not provide a reasonable basis for the court to conclude that the accused and guardian had been colluding to hide the child.
7. While the court was rightly concerned about the disappearance of the child and the prospect of collusion, the detention for one week for the purpose of interrogation was way out of proportion. As interrogation can be done on one day, it was not necessary, in these circumstances, to detain the accused and guardian for a week particularly where no basis had been established. In any case, if there was sufficient reason for the police to believe that the accused and guardian were involved in “disappearing” the child, they would have been charged with an array of offences available under our laws. The object of interrogation can be achieved by less intrusive orders directing the accused and guardian to aid in investigation.
8. For reasons I have stated, I revise and set aside the order of 23rd November 2017. The accused, SOLOMON OORO OMOLLO and the guardian, J A O, are ordered released forthwith on condition that they shall attend Kondele Police Station on a date directed by the Investigating Officer pending mention of the matter on 30th November 2017 before the trial court.
DATED and DELIVERED at KISUMUthis 24th day of November2017.
D.S. MAJANJA
JUDGE