[2010] KEHC 949 (KLR)

No. 83

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CRIMINAL APPEAL NO. 248 OF 2008

JUVENALIS ORINA....................................................................................................APPELLANT

-VERSUS-

REPUBLIC.................................................................................................................RESPONDENT

JUDGMENT

(From original conviction and sentence by the Chief magistrate’s court at Kisii

in Criminal case no. 1373 of 2000 By G.ODUOR(SRM)

This appeal was canvassed on only one ground, the alleged violation of the appellant’s Constitutional rights by the police. The appellant was arrested for the offence of manslaughter contrary to section 202 as read with section 205 of the Penal Code on 17th February, 2000. However it was not until 23rd May, 2000 that he was arraigned before the Chief magistrate’s court at Kisii to answer to the charge. It was alleged in the charge sheet that the appellant on 2nd September, 1999 at Marani Division in Central Kisii within Nyanza province, unlawfully murdered John Ohuru Obonyo.

As the offence preferred was non-capital, the Constitution required that the appellant be brought to court within 24 hours or as soon thereafter as it was reasonably practicable. According to the appellantwhose written submissions I have carefully read and considered, upon his arrest as aforesaid he was held in police custody until 23rd May, 2000 when he was arraigned in court. Thus he had been held in police custody for a total period of 3 months and 7 days beforehe was presented before court to answer to the charge. No explanation was given to the trial magistrate for the said delay. Accordingly, the proceedings were a nullity and the appellant urged me to so hold.

On his part, Mr. Mutuku, learned senior principal state counsel conceded to the delay .He also conceded that no explanation had been proffered by the prosecution for the delay. He had difficulties in tracing any data in respect of what transpired for the period that the appellant was held in police custody. He could thus even at this appellate stage offer any explanation for the blatant delay.

Section 72(3) of the Constitution of Kenya provides interlia:

“a person who is arrested or detained:

a)For the purpose of bringing him before a court in execution of the order of a court: or

b)Upon reasonable suspicion of having committed, or being about to commit , a criminal offence and who is not released, shall be brought before a court as soon as is reasonable practicable, and where he is not brought before a court within twenty –four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of his having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soonas reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.”

From the foregoing it is clear that a person charged with non-capital offence such as the appellant is required to be brought to court within twenty four hours of his arrest failing which it has to be as soon as is reasonably practicable. So that it is not every delay that would lead the court to hold that the accused’s rights have been violated . The constitution recognizes that there are certain circumstances which may make it impossible to bring a suspect to court within the set time lines. However, in the event of such delay, duty is cast upon the detaining authority to give the explanation. However not every explanation will suffice. In the case of Fanxi & Others .V. the Attorney General, Misc.Criminal application number 860 of 2007(UR) Ojwang J attempted to define the kind of explanation that may be acceptable to court. He stated thus:-

i)The explanation must carry elements of objective reasoning.

ii)The explanation must make sense in the light of special circumstances of the case

iii)The explanation must be made bonafide, and not merely as a technicality in aid of the prosecution.

iv)explanation should show such operational difficulty as may have prevented timeous arraignment of the suspect in court.

v)The explanation should show clearly that the arresting authority did exercise genuine professional care in conducting the investigations preceding the arrest.

I entirely agree and endorse the aforesaid sentiments. However in dealing with the question of violation of Constitutional rights and in particular on issues of delay, it must be appreciated that the court is dealing with two competing Constitutional rights: the right to ensure that crime where detected, perpetrator identified and prosecuted successfully he should be appropriately punished. For he too has violated the rights of the complainant(s). On the other hand it is equally the duty of the court to uphold the Constitutional and fundamental rights of such accused person(s). That is what the court of appeal stated in the case of Albanus Mwasia Mutua .v. Republic, Criminal Appeal no. 120 of 2004(UR) when it delivered itself thus:-

“We must admit that the matter has caused us some considerable thought and anxiety. On the one hand is the duty of the courts to ensure that crime where it is proved, it’s appropriately punished. This is for the protection of society; on the other hand it is equally the duty of courts to uphold the rights of persons charged with criminal offences particularly the human rights guaranteed to them under the constitution”

Besides the foregoing, it must also be appreciated that a suspect who claims that his Constitutional rights have been violated has under the same Constitution a remedy, he can always sue for damages.

Under section 72(3) of the Constitution the police were entitled to hold the appellant in custody for 24 hours as he had been arrested for non-capital offence failing which to bring him to court as soon as reasonably practicable. The police, prima facie, in detaining the appellant for three months and seven days before arraigning him in court did so for a period beyond that permitted by the Constitution nor can it be said that he was thereafter brought to court as soon as it was reasonably practicable. The burden to explain the delay was on the prosecution.However since the prosecution did not take up the challenge then the court as the ultimate enforcer of the provisions of the Constitution was duly bound to raise the issue. That is what the court of appeal said in the case of Ndede .V. Republic (1991) KLR 567. In the recent case of Paul Mwangi Murunga (ibid)the court of appeal reinforced that position by stating interlia:-

“This appellant was held in unlawful custody for some ten days and no explanation for that delay is forthcoming either from the record or from the prosecuting counsel. In the case of ALBANUS MWASIA MUTUA .V. REPUBLICCriminal Appeal no. 120 of 2004, (unreported) the court suggested some examples of what might amount to an acceptable explanation for the delay. It may be that upon arrest and on being taken to the police station the accused person fell ill, was taken to hospital and was admitted and kept there in excess of the period allowed. Or it may be that the accused person was arrested on a Friday evening and as our courts do not work on weekends and it being not possible to release the accused on bail, he is brought to court on the next working day. Or it may be that the court-house is far from the police station and the station vehicle broke down or had no fuel. These are no more than examples which would and can provide the prosecuting authorities with an explanation to enable them discharge the burden placed on them by section 72(3) of the Constitution. So long as the explanation proffered is reasonable and acceptable, no problem would arise. Again the court might well countenance a delay of say one or two days as not being inordinate and leave the matter at that. In this appeal, we are of the view that a delay of some ten days which remains totally unexplained was too long in the circumstances and we must follow the decision of the court inMUTUA’s case.”

What are the circumstances in this appeal?. The uncontroverted and unchallenged submissions of the appellant is that he was arrested on 17th February, 2000. Yet it took the police upto 23rd May, 2000 to arraign the appellant in court. No explanation whatsoever was proffered by the prosecution before the trial court nor did the trial court itself ask for the explanation. I wish to remind the trial courts of the sentiments expressed by the court of appeal in the case of Daniel Kioko Mbuva.v. Republic, C.A. No. 65 of 2008 (UR): “………the magistrate’s before whom most accused persons first appear do not normally have jurisdiction to deal with 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. If what we are suggesting is adopted by the trial courts this would certainly help the High court or this court in determining whether the explanation offered by the prosecution was reasonable in all the circumstances of the case…..” So that it is no longer mandatory that the prosecution must be called upon to explain in the event of any delay. If they are unwilling to do so then duty is cast upon the trial court to seek for such an explanation.

In the circumstances of this case no explanation reasonable or otherwise was given by the prosecution for the delay. The trial court too failed in its duty by not asking the prosecution for an explanation for the delay.

In view of the foregoing, I am satisfied that there was not or no acceptable explanation why the appellant was not taken to court within 24 hours of his arrest or so soon thereafter. Accordingly I find merit in this ground of appeal as, in my view, the appellant was convicted on the basis of illegal proceedings and or proceedings which were a nullity for want of compliance with the fair trial provisions of the Constitution.I therefore allow the appeal, quash the conviction and set aside the sentence imposed . Unless the appellant is otherwise lawfully held, he should be set at liberty forthwith.

Judgment dated, signed and delivered at Kisii this 31st May, 2010.

ASIKE-MAKHANDIA

JUDGE