[2010] KEHC 1523 (KLR)
The court found that although the conviction was supported by the evidence, the appellant's constitutional rights under section 72(3) of the Constitution were violated because he was detained for six days before being brought to court, with no reasonable explanation provided by the state. The offence was minor, the...
Source-derived case information.
- Citation
- [2010] KEHC 1523 (KLR)
- Parties
- Appellant: Marks Kariuki Karatu; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 48 of 2009
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Attempted Stealing, Unlawful Detention, Right to Be Brought to Court, Identification Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marks Kariuki Karatu
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the appellant was properly convicted of attempted stealing.
- 2 Whether the appellant's constitutional rights under section 72(3) of the Constitution were violated by being detained for over 24 hours before being taken to court.
Ratio Decidendi
The court found that although the conviction was supported by the evidence, the appellant's constitutional rights under section 72(3) of the Constitution were violated because he was detained for six days before being brought to court, with no reasonable explanation provided by the state. The offence was minor, the investigation straightforward, and all witnesses were readily available. The unexplained delay in presenting the appellant to court rendered the proceedings a nullity. Consequently, the conviction and sentence were quashed, and the appellant was ordered to be released unless otherwise lawfully held.
Court Disposition
appeal_allowed
Orders
- The appeal is allowed.
- The conviction and sentence against the appellant are quashed.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU Criminal Appeal 48 of 2009
MARKS KARIUKI KARATU…………..………………APPELLANT
VERSUS
REPUBLIC…………………………....………………RESPONDENT
J U D G M E N T
Marks Kariuki Karatu herein after referred to as the Appellant was charged before the Senior Resident Magistrate Baricho with the offence of attempted stealing contrary to Section 275 as read with Section 389 of the penal code.He pleaded not guilty to the charge.The prosecution called a total of 6 witnesses in support of its case.On his part, the Appellant testified on oath but called no witnesses.In brief the prosecution case was that the complainant was inside his house on the date in question at about midnight.He heard commotion outside at the rabbit cage nearby.He woke up and left the house and tip toed towards the rabbit cage.He saw an intruder who on seeing him ran away.PW1 found one piece of wood removed from the enclosure and a rabbit lying outside the cage.He screamed for help and other persons including some of the witnesses rushed to the scene.PW1 gave the neighbours the description of the person he had seen.The combed the nearby maize plantation and they caught the appellant hiding in a hole.They got hold of him and took him to the police station where he was charged.The Appellant denied having attempted to steal the rabbit and stated that he was just passing by when he was accosted by the members of public who he conceded were his neighbours and taken to the police station.
The learned trial magistrate found him guilty as charged and convicted him and sentenced him to pay a fine of 15,000/- in default 18 months imprisonment.Being aggrieved by that conviction and sentence, he filed this appeal. He has proffered 6 grounds of Appeal as per his petition of appeal. I would like to say however that from the evidence on record, the conviction against the Appellant was safe and properly grounded on the law and facts applicable.He was clearly seen and identified by the complainant who was actually his neighbour.He ran away but was found hiding in the nearby maize plantation.I would find no basis to interfere with the said conviction on the strength of that evidence.
Nonetheless, I note that in ground 2 of his petition of Appeal, the Appellant has raised the ground that he was detained in custody for over 24 hours.From the record of the trial court, he was actually arrested on 4th January 2008 but was taken to court on 10th January. - After a period of 6 days.This was a very petty offence.He was arrested at the locus in quo.He is even said to have been escorted to the police station along with the piece of timber he had removed from the rabbit cage.All the witnesses were from the neighbourhood and easily accessible.There was no reason whatsoever as to why the Appellant was detained for 6 days for a simple straight forward investigation.
I find that his constitutional rights as enshrined by section 72(3) of the constitution were violated.In the absence of any explanation from the state, I find the detention of 6 days inexcusable and unacceptable.The Appellant was held in custody in excess of the allowed time limit without any reasonable explanation.This therefore renders the proceedings against him a nullity.I therefore declare the same as such.The Appellant’s Appeal therefore succeeds on that singular ground.I allow the same and quash the conviction and sentence against him.I order that he be released from prison forthwith unless he is otherwise lawfully held.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 23rd day of September 2010.
In the presence of :- Appellant in person and Ms. Matiru for the state