[2008] KEHC 2127 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Criminal Appeal 120 of 2007

JULIUS MWANGI WAWERU …..…….…..……… APPELLANT

Versus

REPUBLIC ………………………..……………… RESPONDENT

(Being an appeal against the conviction and sentence by T. W. MURIGI, Senior Resident

Magistrate, in the Principal Magistrate’s Criminal Case No. 1756 of 2005 at MURANGA)

JUDGMENT

The appellant was charged with Defilement of a girl contrary to Section 145(1) of the Penal Code. After trial the lower court convicted the appellant on that charge and proceeded to sentence the appellant to 40 years imprisonment. The appellant has filed this appeal against conviction and sentence. Although the appellant in arguing his appeal has raised various issues for consideration by this court, this appeal will however turn on the issue of the appellants constitutional rights as embodied in Section 72(3)(b) of the constitution. The appellant was arrested on 6th August 2005 and was detained in custody until the day he was presented before court on 19th August 2005. The appellant was detained in custody for 13 days. Section 72(3)(b) provides that when a person is charged with a non capital offence he ought to be presented before court within 24 hours. The police did not present the appellant until 13 days later after being put in custody. This was a clear violation of the appellant’s constitutional rights. Such violation will lead this court to quash the conviction of the appellant.

The Court of Appeal in Criminal Appeal No. 35 of 2006 Paul Mwangi Murungu v Republic stated;-

“We do not accept the proposition that the burden is upon an accused person to complain to a magistrate or a judge about the lawful detention in custody of the police. The prosecuting authorities themselves know the time and date when an accused was arrested. They also know when the arrested person has been in custody for more than the twenty four hours allowed in the case of ordinary offences and fourteen days in the case of capital offences. Under Section 72(3) of the Constitution, the burden to explain the delay is on the prosecution, and we reject any proposition that the burden can only be discharged by the prosecution if the person accused raises a complaint. But in case the prosecution does not offer any explanation then the court, as the ultimate enforcer of the provisions of the constitution must raise the issue.

That is what this court said way back in the case of NDEDE vs REPUBLIC already cited herein. Of course the Magistrate before whom most of the accused persons first appear do not normally have the jurisdiction to deal with the matters touching on the Constitution, but that is no reason for not asking relevant questions regarding where the accused person has been since the date of arrest and then recording what explanation has been offered by the prosecution. That will help either the High Court or this court to see if the explanation offered by the prosecution was reasonable in all the circumstances of the case.”

In the case of Albanus Mwasia Mutua Vs. Republic Criminal Appeal No. 120 of 2004, the Court of Appeal had the following to say in respect of such violation:-

“At the end of the day it is the duty of the courts to enforce the provisions of the Constitution, otherwise there would be no reason for having those provisions in the first place. The Jurisprudence which emerges from the cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence which may be adduced to support the charge. In this appeal, the police violated the constitutional right or the appellant by detaining him in their custody for a whole eight months and that, apart from violating his rights under section 72(3) (b) of the constitution also amounted to a violation of his rights under Section 77 (1) of the constitution which guarantees to him a fair hearing within a reasonable time. The deprivation by the police of his right to liberty for a whole eight months before bringing him to court so that his trial could begin obviously resulted in his trial not being held within a reasonable time. The appellant’s appeal must succeed on that ground alone”.

Similarly in the case of Gerald Macharia Githuku Vs. Republic Criminal Appeal No. 119 Of 2004, the Court of Appeal in deciding the appeal found that the appellant had been detained for a total of 17 days from the date of his arrest to the date of being taken before court. The court of appeal in upholding his appeal had the following to say:-

“…………. although the delay of the days in bring the appellant to court 17 days after his arrest instead of within 14 days in accordance with section 72 (3) of the Constitution did not give rise to any substantial prejudice to the appellant and although, on the evidence, we are satisfied that he was guilty as charged, we nevertheless do not consider that the failure by the prosecution to abide by the requirements of section 72(3) of the constitution should be disregarded. Although the offence for which he was to be charged was a capital offence, no attempt was made by the Republic, upon whom the burden rested to satisfy the court that the appellant had been brought before the court as soon as was reasonably practicable.”

In the end because of the violation of the appellants constitutional rights this court does hereby quash the conviction of the appellant and set aside the lower court’s sentence. The appellant is ordered to be released unless otherwise lawfully held.

DATED AND DELIVERED THIS 29th DAY OF JULY 2008

MARY KASANGO

JUDGE