[2004] KEHC 161 (KLR)
The court found that the applicants were detained by the police and not brought before a court within the constitutionally mandated 24 hours. The respondents failed to provide any explanation or justification for the detention, nor did they file any return to the application. Relying on established precedent, the...
Source-derived case information.
- Citation
- [2004] KEHC 161 (KLR)
- Parties
- Applicant: The Republic; Respondent: The Commissioner of Police; Respondent: The Honourable The Attorney General; Appellant: Ali Islam Ali; Appellant: Mohamed Islam Ali
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 37 of 2003
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- Application allowed. Declaration granted that applicants' constitutional rights were infringed. Costs awarded to applicants.
- Legal Topics
- Habeas Corpus, Unlawful Detention, Constitutional Rights Infringement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Republic
Applicant
The Commissioner of Police
Respondent
The Honourable The Attorney General
Respondent
Ali Islam Ali
Appellant
Mohamed Islam Ali
Appellant
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicants' constitutional rights were infringed by their detention without being brought before court within 24 hours.
- 2 Whether the application for habeas corpus and a declaration of rights infringement was properly before the court.
Ratio Decidendi
The court found that the applicants were detained by the police and not brought before a court within the constitutionally mandated 24 hours. The respondents failed to provide any explanation or justification for the detention, nor did they file any return to the application. Relying on established precedent, the court held that such unexplained detention amounts to an infringement of the applicants' fundamental rights under the Constitution. The court further held that the application was properly before it, as the issue of constitutional rights infringement was a direct consequence of the unlawful detention and was appropriately raised within the habeas corpus proceedings. The absence...
Court Disposition
Application allowed. Declaration granted that applicants' constitutional rights were infringed. Costs awarded to applicants.
Orders
- Declaration that the applicants' rights under the Constitution have been infringed.
- Costs of the application awarded to the applicants.
Full Case Text
Judgment text and source record
45 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Misc Crim Appli 37 of 2003
IN THE MATTER OF: AN APPLICATION BY OMAR AHMED ALI ON
BEHALF OF ALI ISALAM ALI AND MOHAMED
ISLAM ALI
IN THE MATTER OF: THE CRIMINAL RPOCEDURE (DIRECTIONS IN
THE NATURE OF HABEAS CORPUS RULES
AND
IN THE MATTER OF: AN APPLICATION FOR AN ORDER OF HABEAS
AD SUBJICIENDUM
BETWEEN
THE REPUBLIC ....................................................................................... APPLICANT
- VERSUS –
1. THE COMMISSIONER OF POLICE through
2. THE HONOURABLE THE ATTORNEY GENERAL.....RESPONDENTS
Ex parte
1. ALI ISLAM ALI
2. MOHAMED ISLAM ALI
J U D G E M E N T
In this case the Applicant’s Ali Islam Ali and Mohamed Islam Ali the suit was commenced by originating summons under Section 389(2) and 123 criminal Procedure Code together with provisions of Section 81,82 & 84 of Constitution of Kenya seeking answers to the issues listed in the application and numbered 1- 5 inclusive. The application is supported by affidavit of one Ahmed Ali, a businessman and cousin brother of the applicants.
Under C/S of the same date several prayers were made under Criminal procedure (Directions in the nature of Habeaus Corpus). provisions
These prayers were dealt with by the court and the issues outstanding are prayer No. 4 and 7 namely-
“4. That the court do declare that the applicants rights under the constitution have been or about to be infringed”and “7. That the costs of this application be provided for.”
Counsel for the applicants argued that from Wednesday the 28. 5.03 at 9. 30 a.m. applicants were arrested by 3 police officers and booked under OB number 28 of that day at the police station (Port police). The applicants were not brought before the court within 24 hours after arrest. Counsel relied on authority of MISC.APP. 6/99betweenRepublic,
Ali Mahfoudh Salim and
1. The Federal Bureau of Investigation (FBI)
2. Commissioner of Police
3. The Attorney General as respondents.
In that case the applicants were detained by the respondents and only after court orders were they released by the respondents. Similarily as in present case a prayer was made for a declaration that the constitutional rights of the applicants were infringed. I have perused the very well reasoned judgment of Waki J as he then was. He found that as no return was filed by respondents explaining the circumstances under which the applicant were arrested and detained the conclusion to be reached is that the applicant was unlawfully detained and deprived of that liberty. At page 20 of the judgment the learned judge said “
l am not as a court of law, entitled to imagine that the respondent had valid reasons for their actions. The Kenya Police is at liberty and has the constitutional mandate to investigate crime to bring criminals to book ……………..’ The Constitution of Kenya does not permit the police or any other law enforcement agency for that matter, to break the law in order to detect crime”.
The judge proceeded to make the declaration sought. The facts in the present case are similar. The applicants were released only after the court orders were issued. The respondents failed to file answer to explain under what circumstances the applicants were held. Following the decision of the High Court in that case (though of pursuasive nature) I am persuaded that the fundamental rights of the applicants as guaranteed under the constitution were infringed. The State Counsel raised the issue of the form in which the application was made. In reply it appears to me that the whole application was raised as per rules set out for direction for Habeas Corpus which was the substantive application. The issue of infringement of constitutional right was a consequence of the act of the detention and it was properly raised in this application. The respondents have not been prejudiced in any event having nothing to say in reply to the applicants’ complaint.
I, therefore, allow the application and grant the orders sought under prayer 4 and the prayer number 7 the costs are awarded to the applicant.
Dated this 21st day of October. 2004.
J. KHAMINWA
JUDGE
21. 10. 04
Khaminwa – Judge
Cege – Court Clerk
Mr. Ademba – State Counsel
Non appearance – Notice given
Judgement read in their presence.
J. KHAMINWA
JUDGE