[2013] KEHC 6970 (KLR)
The court held that the issue of pre-trial detention and alleged violation of section 72(3) of the former Constitution, as raised by the applicant, does not affect the validity of the ongoing criminal trial. Following the precedent set by the Court of Appeal in Julius Kamau Mbugua v Republic, such constitutional...
Source-derived case information.
- Citation
- [2013] KEHC 6970 (KLR)
- Parties
- Applicant: Paul Ngugi Ngure; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Petition 23 of 2013
- Procedural Posture
- Constitutional Petition / Ruling on Reference Under Section 84 of the Former Constitution
- Outcome
- Reference struck out; stay of proceedings discharged; criminal case to proceed.
- Judges
- DAS Majanja
- Legal Topics
- Pre Trial Detention, Bill of Rights, Right to Be Brought to Court, Unlawful Incarceration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Ngugi Ngure
Applicant
Republic
Respondent
Procedural Posture
Constitutional Petition / Ruling on Reference Under Section 84 of the Former Constitution
Legal Issues
- 1 Whether the incarceration of the accused from 15.2.2007 to 1.3.2007 before arraignment contravened his fundamental rights under section 72(3) of the former Constitution.
- 2 Whether pre-trial detention issues affect the validity of the trial or should be addressed separately.
Ratio Decidendi
The court held that the issue of pre-trial detention and alleged violation of section 72(3) of the former Constitution, as raised by the applicant, does not affect the validity of the ongoing criminal trial. Following the precedent set by the Court of Appeal in Julius Kamau Mbugua v Republic, such constitutional questions regarding pre-trial detention must be pursued through a separate petition and not within the context of the criminal proceedings. Consequently, the reference was struck out, the stay of proceedings previously granted was discharged, and the Magistrate's Court was directed to proceed with the criminal case in accordance with the law.
Court Disposition
Reference struck out; stay of proceedings discharged; criminal case to proceed.
Orders
- The reference dated 17th January 2013 is struck out.
- The order of stay of proceedings issued on 13th July 2010 is discharged.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
PETITION NO. 23 OF 2013
IN THE MATTER OF
NAIROBI CHIEF MAGISTRATE’S COURT
CRIMINAL CASE NO. 357 OF 2007
BETWEEN
PAUL NGUGI NGURE ............................................ PETITIONER
AND
REPUBLIC ………….............................................. RESPONDENT
RULING
The matter before the Court is a reference under section 84 of the former Constitution seeking the High Court’s decision on allegations of breach of the applicant’s fundamental rights and freedoms under the Bill of Rights. The question raised for determination is, “whether the incarceration of the accused herein from 15. 2.2007 to 01. 03. 2007 when he was arraigned in 2007 for plea taking contravened his fundamental rights and freedom guaranteed under section 72(3) of the Constitution of Kenya.”
The reference for determination framed by the Magistrate deals with pre-trial detention and violation of section 72(3) of the former Constitution. The breach of pre-trial rights and particularly pre-trial detention was exhaustively considered by the Court of Appeal in the case of Julius Kamau Mbugua v RepublicCA Nairobi Criminal Appeal No. 50 of 2008 (Unreported). The Court held that pre- trial detention issues, such as those raised in the reference, do not affect the trial and should be dealt with separately by the accused filing a separate petition.
In the circumstances and under the power vested in this Court under section 84 , I direct as follows;
The reference dated 17th January 2013 be and is hereby struck out.
The order of stay of proceedings issued on 13th July 2010 by Lady Justice Khaminwa be and is hereby discharged.
The Magistrate’s Court is directed to deal with Nairobi Chief Magistrates Criminal Case No. 357 of 2007 in accordance with the law.
The subordinate court file to be returned forthwith to the subordinate court.
DATED and DELIVERED at NAIROBI this 23rd day of January 2013
D.S. MAJANJA
JUDGE