[2010] KEHC 2308 (KLR)
The court found that the applicant was detained for 129 days before being brought to court, and the prosecution failed to provide any reasonable explanation for this delay. Citing established precedent, the court held that such unexplained delay amounts to a violation of the accused's constitutional rights under...
Source-derived case information.
- Citation
- [2010] KEHC 2308 (KLR)
- Parties
- Applicant: Republic; Defendant: Concepta Kwamboka Gichana
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 2 of 2007
- Procedural Posture
- Criminal Case / Ruling on Constitutional Application During Trial
- Outcome
- acquittal
- Judges
- DK Musinga
- Legal Topics
- Pre Trial Detention, Right to Be Brought to Court, Violation of Constitutional Rights, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Concepta Kwamboka Gichana
Defendant
Procedural Posture
Criminal Case / Ruling on Constitutional Application During Trial
Legal Issues
- 1 Whether the applicant's constitutional rights under sections 72(3) and 77 of the Constitution were violated by being held in custody for 129 days before being arraigned in court.
- 2 Whether the unexplained delay in arraignment renders the murder charge unsustainable.
Ratio Decidendi
The court found that the applicant was detained for 129 days before being brought to court, and the prosecution failed to provide any reasonable explanation for this delay. Citing established precedent, the court held that such unexplained delay amounts to a violation of the accused's constitutional rights under section 72(3) of the Constitution. As a result, the charge of murder could not be sustained, and the applicant was entitled to an acquittal. The court accordingly acquitted the applicant and ordered her release unless otherwise lawfully held.
Court Disposition
acquittal
Orders
- The applicant is acquitted of the charge of murder.
- The applicant is set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Criminal Case 2 of 2007
REPUBLIC ………………………………………… PROSECUTOR
VERSUS
CONCEPTA KWAMBOKA GICHANA ………………. ACCUSED
RULING
The applicant was charged with murder contrary to section 203 as read withsection 204of thePenal Code.The particulars of the offence were that on the 8th day of September 2006 at Rieteba sub location, Nyanguru location in Kisii Central District, she murderedJames Gichana Abugahereinafter referred to as“the deceased.”
In the course of the trial the applicant filed an application undersection 65, 72 (3)and77 (1) & (2)of theConstitution.She urged the court to make a finding that her constitutional rights had been violated because she had been held in custody for a period of 129 days before she was arraigned in court.
In her affidavit in support of the application, the applicant deposed that she was arrested on 11th September 2006 and taken to Rioma police station but was not taken to court until 17th January 2007 when she appeared before a Deputy Registrar who ordered that the plea be taken on 7th February 2007. She averred that there was no reasonable explanation for such delay.
The police were unable to give any explanation as to why the applicant was kept in police custody for all that time.It is now trite law that such unexplained delay amounts to violation of an accused’s constitutional rights, seeALBANUS MWASIA MUTUA –VS-REPUBLIC, Criminal Appeal No. 120 of 2004. In the circumstances, the applicant’s application must succeed with the consequence that the charge of murder that had been preferred against her cannot be sustained.The applicant is acquitted of the charge of murder and is hereby set at liberty forthwith unless otherwise lawfully held.It is so ordered.
DATED, SIGNED AND DELIVERED AT KISII THIS 8TH DAY OF MARCH, 2010.
D. MUSINGA
JUDGE.
8/3/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Gitonga for the state
Mr. Kaburi for the accused
Accused – present
Court:Ruling delivered in open court on8th March, 2010.
D. MUSINGA
JUDGE.