[2009] KEHC 3756 (KLR)
The court found that the petitioner was detained for 35 days before being arraigned in court, far exceeding the constitutional limit of 14 days for murder charges. The respondent failed to provide any explanation or justification for this delay, despite being given an opportunity to do so. The burden of proof to...
Source-derived case information.
- Citation
- [2009] KEHC 3756 (KLR)
- Parties
- Applicant: Joseph Ojwando Owino; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Petition 19 of 2008
- Procedural Posture
- Constitutional Petition / Ruling on Constitutional Reference Regarding Violation of Rights During Criminal Proceedings
- Outcome
- petition allowed; petitioner acquitted of murder charge due to violation of constitutional rights
- Legal Topics
- Right to Be Brought to Court Within Time, Unlawful Detention, Remedies for Constitutional Violations, Burden of Proof on State
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ojwando Owino
Applicant
The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Constitutional Reference Regarding Violation of Rights During Criminal Proceedings
Legal Issues
- 1 Whether the petitioner's constitutional right under Section 72(3)(b) of the Constitution was violated by being held for 35 days before being arraigned in court.
- 2 Whether unexplained violation of the right to be brought to court within the prescribed period warrants acquittal regardless of the evidence against the accused.
Ratio Decidendi
The court found that the petitioner was detained for 35 days before being arraigned in court, far exceeding the constitutional limit of 14 days for murder charges. The respondent failed to provide any explanation or justification for this delay, despite being given an opportunity to do so. The burden of proof to show that the delay was reasonable and justified rested on the state, which did not discharge this burden. The court held that the unexplained violation of the petitioner's constitutional right under Section 72(3)(b) of the Constitution entitled him to an acquittal, following established precedent. The same reasoning applied to the co-accused in a similar application.
Court Disposition
petition allowed; petitioner acquitted of murder charge due to violation of constitutional rights
Orders
- The petitioner is acquitted of the charge of murder.
- The ruling applies equally to the co-accused in Constitutional Reference No. 18 of 2008.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT KISII
Constitutional Petition 19 of 2008
JOSEPH OJWANDO OWINO ……..……………………….. PETITIONER
AND
THE ATTORNEY GENERAL …………………..………… RESPONDENT
RULING:
The petitioner was charged jointly with Dedan Otieno Ojwado with murder contrary to Section 203 as read with Section 204of thePenal Code. It was alleged that on the 29th day of August, 2005 at South Kabuoch Location, in Homa bay District, within Nyanza Province the petitioner and his co-accused jointly with others not before court murdered Johnson Okoth Rangango. The petitioner was arrested on 8th January 2006 and was held at Ndhiwa Police station for a period of 35 days before he was arraigned in court on 13th February 2006.
The petitioner filed a constitutional reference and urged the court to find and hold that his constitutional rights as provided under Section 72 (3) (b) of the constitution had been violated. The application was filed on 11th December, 2008. When the application came up for hearing on 26th February 2009, Mr. Mutai, Senior State Counsel, sought an adjournment so that the Attorney General could file a replying affidavit. He undertook to file the same within ten days from the said date. The court granted the application but the Attorney General did not file any affidavit to explain the cause of delay in arraigning the petitioner in court.
Section 72 (3) (b)of the constitution requires that a person charged with murder be taken to court within fourteen days from the date of his arrest. Where that is not done the burden of proving that the suspect has been brought before a court as soon as is reasonably practicable rests upon any person alleging that the provisions of the said subsection have been complied with. In this regard, the Officer Commanding Ndhiwa police station ought to have filed an affidavit and explain the circumstances that led to the petitioner’s stay in police cells for a period of 35 days before he was brought to court. He failed to do so.
It is now well settled that unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence which may be adduced in support of a charge. It cannot be denied that the police violated the petitioner’s constitutional right as guaranteed by the aforesaid section. It is the duty of courts and particularly the High Court which is mandated to deal with constitutional issues, to enforce the provisions of the Constitution. See ALBANUS MUASYA MUTUA –VS- REPUBLIC, Criminal Appeal No. 120 of 2004. I find and hold that the petitioner’s constitutional right was violated and no explanation has been offered by the police. In the circumstances, the petitioner is acquitted of the charge of murder which he was facing. This ruling will also apply to the petitioner’s co-accused who has also filed a similar application vide Constitutional Reference No. 18 of 2008.
DATED, SIGNED AND DELIVERED AT KISII THIS 30TH DAY OF APRIL, 2009.
D. MUSINGA
JUDGE.
30/4/2009
Before D. Musinga, J.
Mobisa – cc
Mr. Mutai for the State.
Mr. Omwega for the Applicant.
Court: Ruling delivered on 30th April 2009 in open court.
D. MUSINGA
JUDGE.