[2008] KEHC 1340 (KLR)

[2008] KEHC 1340 (KLR)

The court found that although the 1st and 2nd applicants were detained beyond the constitutional period prescribed under section 72(3) of the Constitution, their application was fatally defective for failure to comply with the mandatory procedural requirements set out in section 84 of the Constitution and the Gicheru Rules. Specifically, the application was not brought by way of a petition supported by an affidavit, as required. The rules of procedure are binding on all litigants, including those without legal representation, and non-compliance renders the application incompetent. Consequently, the court dismissed the application without considering the substantive merits of the alleged...

Citation
[2008] KEHC 1340 (KLR)
Parties
Applicant: Japhet Gituma Joseph; Applicant: David Bundi; Applicant: Alfano Mwongera; Respondent: Republic
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
15 October 2008
Case Number
? 42 of 2008
Procedural Posture
Criminal Miscellaneous Application / Ruling on Application to Declare Trial a Nullity for Constitutional Violation
Outcome
application dismissed
Judges
SP Ouko
Legal Topics
Pre Trial Detention, Right to Be Brought to Court, Procedure for Enforcement of Fundamental Rights, Robbery With Violence, Application of Gicheru Rules
Source Language
English
Criminal Law Constitutional Law Pre Trial Detention Right to Be Brought to Court Procedure for Enforcement of Fundamental Rights Robbery With Violence Application of Gicheru Rules

Case Brief

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Parties

Japhet Gituma Joseph

Applicant

David Bundi

Applicant

Alfano Mwongera

Applicant

Republic

Respondent

Procedural Posture

Criminal Miscellaneous Application / Ruling on Application to Declare Trial a Nullity for Constitutional Violation

Legal Issues

  1. 1 Whether the applicants' constitutional rights under section 72(3) of the Constitution were violated by being detained beyond the prescribed period before being brought to court.
  2. 2 Whether the application to challenge the trial for alleged constitutional violations was properly before the court in accordance with section 84 of the Constitution and the Gicheru Rules.
  3. 3 Whether the applicants are entitled to have their trial declared a nullity and be set at liberty due to the alleged violations.

Ratio Decidendi

The court found that although the 1st and 2nd applicants were detained beyond the constitutional period prescribed under section 72(3) of the Constitution, their application was fatally defective for failure to comply with the mandatory procedural requirements set out in section 84 of the Constitution and the Gicheru Rules. Specifically, the application was not brought by way of a petition supported by an affidavit, as required. The rules of procedure are binding on all litigants, including those without legal representation, and non-compliance renders the application incompetent. Consequently, the court dismissed the application without considering the substantive merits of the alleged...

Court Disposition

application dismissed

Orders

  • The consolidated application is dismissed for failure to comply with the mandatory procedural requirements under the Constitution and the Gicheru Rules.