[2009] KEHC 2569 (KLR)
The court found that although the applicant was held in custody for 11 days before being arraigned, the delay was satisfactorily explained by the unprecedented post-election violence and the overstretched capacity of the police force at the time. The court held that only unreasonable or unexplained delay amounts to...
Source-derived case information.
- Citation
- [2009] KEHC 2569 (KLR)
- Parties
- Applicant: Josephat Nyarongi Ondieki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 58 of 2009
- Procedural Posture
- Criminal Review / Ruling on Constitutional Reference Regarding Delay in Arraignment
- Outcome
- constitutional reference dismissed; trial to proceed
- Legal Topics
- Pre Trial Detention, Right to Be Brought to Court, Delay in Arraignment, Constitutional Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephat Nyarongi Ondieki
Applicant
Republic
Respondent
Procedural Posture
Criminal Review / Ruling on Constitutional Reference Regarding Delay in Arraignment
Legal Issues
- 1 Whether the applicant's constitutional right under Section 72(3)(b) of the Constitution was violated by being held in police custody for 11 days before being arraigned in court.
- 2 Whether the delay in arraignment justified acquittal of the applicant on the charge of obtaining money by false pretences.
Ratio Decidendi
The court found that although the applicant was held in custody for 11 days before being arraigned, the delay was satisfactorily explained by the unprecedented post-election violence and the overstretched capacity of the police force at the time. The court held that only unreasonable or unexplained delay amounts to a violation of constitutional rights. Since the delay was justified by the prevailing circumstances, the applicant's constitutional rights were not violated. The court dismissed the constitutional reference and directed that the hearing proceed in the normal manner before the trial court.
Court Disposition
constitutional reference dismissed; trial to proceed
Orders
- The constitutional reference is dismissed.
- The hearing should proceed in the normal manner before the trial court.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Criminal Review 58 of 2009
JOSEPHAT NYARONGI ONDIEKI …………………… APPLICANT
VERSUS
REPUBLIC …………………………………………….. RESPONDENT
RULING:
On 4/2/2008 Mr. Nyambati, the applicant’s learned counsel, raised an objection regarding taking of the plea, saying that his client had been held in police custody for a period of 11 days, contrary to the Provisions of Section 72 (3) (b) of the Constitution. He urged the court to acquit him of the charge of obtaining money by false pretences which had been preferred against him.
The prosecutor opposed the said application and gave reasons for the delay. He explained that the delay was caused by the post election violence that rocked parts of Sotik area at the time. There is also on record a letter dated 4th February, 2008 by the D.C.I.O. Kisii Central, to the Senior Principal Magistrate.
The learned trial magistrate dismissed the application and ordered the plea to be taken. The trial court delivered a considered ruling on 19th February, 2008. Immediately thereafter the plea was taken and the accused pleaded not guilty to the said charge. The hearing commenced on 28th March, 2008 and the prosecution closed its case on 17th February, 2009, having called a total of 8 witnesses. Mr. Nyambati submitted that a prima facie case had not been made out against his client. He raised the aforesaid constitutional issue once again. The prosecution responded and reiterated the same reason as earlier advanced.
The learned trial magistrate framed several issues for determination and forwarded the file to this court.
The accused did not appeal against the ruling of 19th February, 2008. The defence counsel, prior to the delivery of that ruling, had not asked the trial court to refer the matter to the High Court for determination of the constitutional issue. He had merely urged the court to acquit the accused of the charges that he was facing. The action of taking the plea after dismissal of the said application and thereafter proceeding with the hearing was an indication that the accused was no longer challenging the constitutional validity of the charges that had been preferred against him. The accused’s advocate and the trial court may not have adopted the right procedure as prescribed under the Constitution of Kenya (Supervisory Jurisdiction and Protection of Fundamental Rights and Freedoms of the Individual) High Court Practice and Procedure rules, 2006. That notwithstanding, no appeal was preferred against the said ruling.
In any event, I have perused the lower court record and noted the reasons that were advanced for the delay in arraigning the accused before the trial court. It is not in dispute that around 24th January, 2008 when the accused was arrested, the unprecedented post election chaos that rocked most parts of Kenya were still simmering. The police force was over stretched in its capacity and many of its officers were engaged in activities aimed at restoring law and order.
It is unreasonable or unexplained delay in arraigning an accused person in court that amounts to violation of his rights. I hold that the accused’s Constitutional rights were not violated and dismiss this constitutional reference. The hearing should proceed in the normal manner before the trial court.
DATED, SIGNED AND DELIVERED AT KISII THIS 20TH DAY OF JULY, 2009.
D. MUSINGA
JUDGE.
20/7/2009
Before D. Musinga, J.
Mobisa – cc
Mr. Kemo for the state.
Mr. Ombati for the applicant.
Court: Ruling delivered in open court on 20th July, 2009.
D. MUSINGA
JUDGE.