[2009] KEHC 3703 (KLR)
The court found that the applicant was arrested by Administration Police on 15th October, 2008, handed over to the police on 16th October, 2008, and arraigned in court on 17th October, 2008. The delay was explained by the police as being due to a broken-down vehicle, which was accepted by the court as a reasonable...
Source-derived case information.
- Citation
- [2009] KEHC 3703 (KLR)
- Parties
- Applicant: Justine Nyangau Mboya; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 93 of 2008
- Procedural Posture
- Constitutional Reference / Ruling
- Outcome
- application dismissed
- Legal Topics
- Right to Be Brought to Court Without Delay, Pre Trial Detention, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Justine Nyangau Mboya
Applicant
Republic
Respondent
Procedural Posture
Constitutional Reference / Ruling
Legal Issues
- 1 Whether the applicant's constitutional rights were violated by delay in being arraigned in court after arrest.
- 2 Whether the explanation provided by the police for the delay was reasonable and justified under the Constitution.
Ratio Decidendi
The court found that the applicant was arrested by Administration Police on 15th October, 2008, handed over to the police on 16th October, 2008, and arraigned in court on 17th October, 2008. The delay was explained by the police as being due to a broken-down vehicle, which was accepted by the court as a reasonable and justified cause. The court held that there was no unexplained or unreasonable delay in bringing the applicant before the court, and therefore, no violation of his constitutional rights occurred. The application was dismissed, and the criminal case against the applicant was ordered to proceed expeditiously.
Court Disposition
application dismissed
Orders
- The applicant's application is dismissed.
- The criminal case against the applicant shall proceed expeditiously.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
Constitutional Reference 93 of 2008
JUSTINE NYANGAU MBOYA ..APPLICANT.
VERSUS
REPUBLIC ….…...…………. RESPONDENT
RULING
The applicant was charged with stealing by servant contrary to section 281 of the Penal Code. The charge shows that he was arrested on 16th October, 2008 and arraigned in court on 17th October, 2008. However, the applicant said that he was arrested on 15th October, 2008 and arraigned on 18th October, 2008. At the commencement of his crime, the applicant raised a constitutional issue regarding violation of his rights and asked the trial court to refer the matter to this court for determination.
Chief Inspector Kipsaina Serem, the OCS Rioma Police Station swore an affidavit and explained that the applicant was arrested by Administration Police Officers attached to Mosocho A. P. Post on 15th October, 2008. He was handed over to the police on 16th October 2008. The station vehicle was broken down and the police could not escort him to Kisii Law Courts which is about 25 kilometres away until the 17th of October, 2008 when the vehicle was repaired.
From the above explanation given by the police I do not find that there was any breach of the applicant’s constitutional rights. The applicant was arrested on 15th October, 2008 by Administration Police and at the earliest opportunity; the police at Rioma escorted the applicant to court. It is unexplained delay in arraigning an accused person before court that amounts to violation of his constitutional rights. In the circumstances, I dismiss applicant’s application and order that the case against him proceeds expeditiously.
DATED, SIGNED and DELIVEREDat KISII this 31stday of March,2009.
D. K. MUSINGA.
JUDGE.
Delivered in the open court in the presence of:
1. N/A for the Applicant.
2. Mr. Mutai for the Republic.
D. K. MUSINGA.
JUDGE.