[2009] KEHC 749 (KLR)
The court found that the applicant was detained for 14 days before being charged, far exceeding the constitutional requirement that a person arrested for a non-capital offence be brought to court within 24 hours. The state failed to provide any explanation for this delay, despite multiple opportunities and...
Source-derived case information.
- Citation
- [2009] KEHC 749 (KLR)
- Parties
- Applicant: Joshua Mokua; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 73 of 2008
- Procedural Posture
- Constitutional Reference / Ruling
- Outcome
- application allowed; criminal charge quashed; applicant released
- Judges
- AO Muchelule
- Legal Topics
- Unlawful Detention, Right to Be Brought to Court, Fundamental Rights, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Mokua
Applicant
Republic
Respondent
Procedural Posture
Constitutional Reference / Ruling
Legal Issues
- 1 Whether the applicant's detention for 14 days before being charged contravened section 72(3) of the Constitution.
- 2 Whether the unexplained delay in bringing the applicant to court warranted quashing the criminal charge.
Ratio Decidendi
The court found that the applicant was detained for 14 days before being charged, far exceeding the constitutional requirement that a person arrested for a non-capital offence be brought to court within 24 hours. The state failed to provide any explanation for this delay, despite multiple opportunities and adjournments. Established jurisprudence holds that unexplained violation of this right mandates acquittal, irrespective of the strength of the prosecution's evidence. Consequently, the applicant's constitutional rights were violated, and the criminal charge against him was quashed. The applicant was ordered to be released immediately unless otherwise lawfully held.
Court Disposition
application allowed; criminal charge quashed; applicant released
Orders
- The criminal charge against the applicant is quashed.
- The applicant is to be immediately set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Constitutional Reference 73 of 2008
IN THE MATTER OF SECTION 84(3)
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER SECTION 72(3) AND (5) OF THE CONSTITUTION OF KENYA
IN THE MATTER OF CRIMINAL CASE NO.1389/2006 AT NYAMIRA SRM’S COURT.
BETWEEN
JOSHUA MOKUA …………………………………………………… APPLICANT
VERSUS
REPUBLIC ………………………………………………….……….. RESPONDENT
RULING
The Applicant was charged before the Senior Resident Magistrate, Nyamira with robbery contrary to section 296(1) of the Penal Code. In the course of trial, his counsel Mr. Momanyi brought to the attention of the court the fact that his client had been detained before charge for longer than the constitution allowed. He had been arrested on 30/11/06 and charged on 17/12/06, a period of 14 days. The court referred the matter to this court to determine the constitutionality of that detention. The reference was made after the case was adjourned severally to allow for the police to come to make explanation for the delay. They failed to attend or offer explanation. Before this court, Mr. Kemo, Senior Principal State Counsel, was equally unable to extract explanation from the police, despite adjournments being granted to him.
Under section 72(3)(b) of the Constitution a person arrested upon reasonable suspicion of having committed a non-capital offence has to be brought to court as soon as is reasonably practicable, and at any rate within 24 hours of his arrest. It is now settled jurisprudence (Albanus Mwasia Mutua v. Republic, Criminal Appeal No.120 of 2004 at Nairobi, Gerald Macharia Githuku v. Republic, Criminal Appeal No.119 of 2004 at Nairobi, Francis Ogega Mochama v. Republic, HCCRC NO.21 of 2005 at Kisii, etc) that the unexplained violation of this right of a suspect will result in his acquittal, irrespective of the nature and strength of the evidence the state holds or has adduced against him. In instant case, the state has failed to explain the lengthy detention of the Applicant without charge. I find the constitutional right of the Applicant was transgressed. The criminal charge against him is ordered quashed and he is immediately set at liberty unless he is otherwise being lawfully held.
Dated, signed and delivered at Kisii this 7th day of October, 2009
A.O. MUCHELULE
JUDGE
7/10/2009
Before A.O.Muchelule-Judge
Mongare court clerk
Mr. Momanyi for applicant
Mr. Mutai for state
COURT: Ruling in open court .
A.O.MUCHELULE
JUDGE
7/10/2009