[2018] KEHC 5208 (KLR)

[2018] KEHC 5208 (KLR)

The court held that while Section 206 of the Criminal Procedure Code prohibits proceeding with felony trials in the absence of the accused, this statutory provision is inconsistent with Article 50(1)(e) of the Constitution, which guarantees the right to a trial without unreasonable delay. The deliberate absconding of the 1st and 3rd Respondents should not be allowed to infringe on the constitutional rights of the co-accused to have their trial concluded expeditiously. The supremacy of the Constitution means that any statutory provision that would cause unreasonable delay and infringe on these rights is void to the extent of the inconsistency. The court was satisfied that the police had...

Citation
[2018] KEHC 5208 (KLR)
Parties
Applicant: Republic; Respondent: B M; Respondent: Douglas Gitonga Mutembei; Respondent: S M; Respondent: Daniel Gitonga Mwangangi
Court
High Court
Court Station
High Court at Chuka
Jurisdiction
Kenya
Judgment Date
20 June 2018
Case Number
Murder Case 2 of 2016
Procedural Posture
Criminal Application / Ruling on Prosecution's Motion to Proceed in Absence of Some Accused
Outcome
Application allowed. Trial to proceed in absence of 1st and 3rd Respondents.
Judges
BB Limo
Legal Topics
Trial in Absentia, Constitutional Rights of Accused, Delay of Trial, Application of Statutory Vs Constitutional Provisions
Source Language
English
Criminal Law Civil Procedure Trial in Absentia Constitutional Rights of Accused Delay of Trial Application of Statutory Vs Constitutional Provisions

Case Brief

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Parties

Republic

Applicant

B M

Respondent

Douglas Gitonga Mutembei

Respondent

S M

Respondent

Daniel Gitonga Mwangangi

Respondent

Procedural Posture

Criminal Application / Ruling on Prosecution's Motion to Proceed in Absence of Some Accused

Legal Issues

  1. 1 Whether the court can proceed with a murder trial in the absence of accused persons who have deliberately absconded from custody.
  2. 2 Whether Section 206 of the Criminal Procedure Code, which prohibits trial of felonies in absence of accused, is overridden by Article 50(1)(e) of the Constitution guaranteeing trial without unreasonable delay.
  3. 3 Whether the rights of co-accused to a speedy trial can be infringed by the conduct of absconding accused persons.

Ratio Decidendi

The court held that while Section 206 of the Criminal Procedure Code prohibits proceeding with felony trials in the absence of the accused, this statutory provision is inconsistent with Article 50(1)(e) of the Constitution, which guarantees the right to a trial without unreasonable delay. The deliberate absconding of the 1st and 3rd Respondents should not be allowed to infringe on the constitutional rights of the co-accused to have their trial concluded expeditiously. The supremacy of the Constitution means that any statutory provision that would cause unreasonable delay and infringe on these rights is void to the extent of the inconsistency. The court was satisfied that the police had...

Court Disposition

Application allowed. Trial to proceed in absence of 1st and 3rd Respondents.

Orders

  • The trial shall proceed from where it left off, notwithstanding the absence of the 1st and 3rd Respondents.
  • The findings of the court upon conclusion of the trial will be binding on the 1st and 3rd Respondents, their absence notwithstanding.