[2007] KEHC 2060 (KLR)
The court found that the prosecution's failure to bond witnesses and prepare the case for over a year, despite clear court orders, amounted to a violation of the accused persons' constitutional right to a fair and expeditious trial. The court held that the prosecution's conduct demonstrated a lack of seriousness and...
Source-derived case information.
- Citation
- [2007] KEHC 2060 (KLR)
- Parties
- Applicant: Republic; Defendant: Andrew Wekesa Wasame; Defendant: Joseph Juma Marani; Defendant: Griffin Wanyama Namasaka
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 37 of 2004
- Procedural Posture
- Criminal Case / Ruling on Application for Adjournment and Discharge of Accused
- Outcome
- accused persons discharged and released; prosecution's application for adjournment denied
- Legal Topics
- Right to Fair Trial, Right to Speedy Trial, Adjournment of Proceedings, Prosecutorial Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Andrew Wekesa Wasame
Defendant
Joseph Juma Marani
Defendant
Griffin Wanyama Namasaka
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Adjournment and Discharge of Accused
Legal Issues
- 1 Whether the prolonged delay in prosecuting the accused persons infringed their constitutional right to a fair and speedy trial.
- 2 Whether the prosecution's failure to bond witnesses and prepare the case justified further adjournment.
- 3 Whether the accused persons should be discharged due to the prosecution's laxity.
Ratio Decidendi
The court found that the prosecution's failure to bond witnesses and prepare the case for over a year, despite clear court orders, amounted to a violation of the accused persons' constitutional right to a fair and expeditious trial. The court held that the prosecution's conduct demonstrated a lack of seriousness and disregard for the liberty of the accused, who had been incarcerated for an unreasonable period without progress in their trial. The court concluded that no sufficient reason had been provided for the delay or for further adjournment, and that the continued remand of the accused would perpetuate the infringement of their rights. Accordingly, the court exercised its inherent...
Court Disposition
accused persons discharged and released; prosecution's application for adjournment denied
Orders
- The accused persons are discharged and ordered to be set at liberty unless otherwise lawfully held.
- The accused persons shall not be re-arrested or charged with any other offence based on the same facts.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
Criminal Case 37 of 2004
REPUBLIC…………………......…..……………………..PROSECUTOR
VS
ANDREW WEKESA WASAME
JOSEPH JUMA MARANI
GRIFFIN WANYAMA NAMASAKA………………....………..ACCUSED
RULING
I have gone through the previous proceedings in this file. I have observed that the accused persons herein first appeared before this court on 5. 7.2004 which is slightly over 3 years ago. The matter later took off and 3 witnesses testified for the prosecution. Those proceedings were thereafter set aside and the matter ordered to proceed denovo before my brother Justice Ombija. The matter did not take off before Judge Ombija and I inherited the same on 24. 1.2007. I again made an order that the same starts denovo. We took the hearing date 7 months away. The matter was supposed to proceed yesterday but there were no witnesses bonded to appear what surprised me is that the Police Officer who was in court said he had only been given his file 2 days ago and he seemed to have had no idea of what it was all about. The reason I was given for the non bonding of the witnesses was that the I.O did not know that the matter was meant to start denovo. That was nonetheless surprising given the fact that the order that the matter starts denovo was made by Justice Sergon on 5. 6.2006 i.e over one year ago. This shows how lightly the prosecution takes these matters. We should never loose sight to the fact that an accused person is presumed innocent until otherwise proven guilty. The accused persons herein are still presumed innocent until they are proven guilty. If the state is taking more than 1 year to appreciate the position of their file, surely what can we read or infer from that conduct? Is this laxity, negligence, or a sheer don’t care attitude because they expect to be granted an adjournment any time they apply for one? The accused persons are guaranteed a fair and speedy trial by the constitution and this is one of their in alterable rights. The same should not be taken away from them without good reason. Although admittedly, a ‘reasonable time’ has not been defined by the constitution, 3 years is a long time. Over 1 year to bond witnesses is definitely more than a reasonable time. The casual manner in which the prosecution treated this matter astounded me and clearly showed that the gravity of these matters and the fact that the accused persons are deprived of their liberty by the long incarceration seems to evade the prosecution.
To cut a long story short, I was not given any sufficient or indeed any reason whatsoever as to why the witnesses were not bonded and consequently why I should allow the application for adjournment. I have no reason whatsoever to adjourn this matter further. The court cannot condone the kind of laxity that has been shown by the prosecution in this matter. Accordingly, my finding is that the constitutional Rights of the accused persons loan expeditious trial within a reasonable time has been infringed by the state and I find no reason why the accused persons should be remanded in custody any longer. Accordingly, I invoke my inherent powers as bestowed on me by section 60 of the Constitution of Kenya
ischarge the accused persons herein and order that they be set at liberty unless otherwise lawfully held. I further order that they shall not be re-arrested and charged with any other offence based on the same facts.
A certified copy of this ruling be supplied to D.C.I.O, Bungoma, and P.C.I.O Western Province as they are put on notice that similar measures will be applied in similar cases where such lack of seriousness is on the part of the prosecution is noted.
W. KARANJA
JUDGE
24/7/2007
DELIVERED today in open court in presence of Mr. Ndege for state, MS
Mukhongo for Makali for the accused and the accused persons.
W. KARANJA
JUDGE
24/7/2007