[2009] KEHC 235 (KLR)
The court found that the applicants were not arraigned within the constitutionally mandated 14-day period, thus their pre-trial constitutional rights were violated. However, the Constitution does not provide for automatic acquittal or nullification of charges as a remedy for such violation. Instead, the appropriate...
Source-derived case information.
- Citation
- [2009] KEHC 235 (KLR)
- Parties
- Applicant: Joseph Muya Oloo; Applicant: Rosemary Okinyo Muya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 52 of 2009
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Constitutional Application Regarding Pre Trial Rights
- Outcome
- application dismissed
- Legal Topics
- Pre Trial Rights, Right to Liberty, Arraignment Timelines, Compensation for Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Muya Oloo
Applicant
Rosemary Okinyo Muya
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Constitutional Application Regarding Pre Trial Rights
Legal Issues
- 1 Whether the applicants' constitutional rights to be arraigned within 14 days of arrest were violated.
- 2 Whether violation of pre-trial constitutional rights entitles the applicants to acquittal and quashing of charges.
Ratio Decidendi
The court found that the applicants were not arraigned within the constitutionally mandated 14-day period, thus their pre-trial constitutional rights were violated. However, the Constitution does not provide for automatic acquittal or nullification of charges as a remedy for such violation. Instead, the appropriate remedy is a claim for compensation against those responsible for the violation. Therefore, the application to quash the charges and set the applicants free was dismissed, and the criminal case against them was ordered to proceed to hearing.
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicants are at liberty to claim compensation from the violators of their rights.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Miscellaneous Criminal Application 52 of 2009
JOSEPH MUYA OLOO .....................................1ST APPLICANT
ROSEMARY OKINYO MUYA........................... 2ND APPLCIANT
V E R S U S
REPUBLIC..............................................................RESPONDENT
R U L I N G
In their application filed on 30th April, 2009 the applicants seek orders that the violation of their fundamental Constitutional rights to liberty be determined. The application is brought undersection 84 (1)and(2), 72 (3) (b)and77 (1)of the Constitution.
The applicants contend that they were arrested on 6th March 2008 and were taken for plea on 27th March, 2008 when they were charged with murder, vide High Court Criminal Case No.15 of 2008. The applicants further contend that their Constitutional rights were violated as they were to be arraignedbefore the court within fourteen (14) days from the date of arrest and that they should be released as the police contravened the law. They pray that this court “quashes the charge they are facing and declare them a nullity and they be set free forthwith.”
The State did not respond to the applicants’ contentions by way of replying affidavit. No explanation was given as to the correctness or otherwise of the applicants’ allegations. This being the case, I do find that indeed the applicants were not arraigned before court within 14 days as stipulated by the law. The applicants’ pre-trial Constitutional rights as enshrined in the Constitution were therefore violated.
Having found that the applicants’ Constitutional rights were violated, the next issue is whether the charge facing the applicants should be declared as a nullity and quashed resulting to the acquittal of the applicants. I do not find any provision in the Constitution which specifically states that a victim of violation of pre-trial rights should be acquitted of the charges facing him. Violation of the applicant’s rights does not automatically trigger acquittal.
The only relevant Constitutional provision on this matter is section 72 (6) which allows victims to claim compensation from those persons who violated their rights. I therefore do find that the applicants’ Constitutional rights to be arraigned before court within 14 days from the date of arrest were violated. The applicants are at liberty to claim compensation from the violators of those rights. The High Court Criminal Case No. 15 of 2008 shall proceed for hearing. This application is dismissed. It is so ordered.
Delivered, Dated and Signed at Kakamega this 5th day of November, 2009
SAID J. CHITEMBWE
J U D G E