[2008] KEHC 2662 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

Criminal Case 6 of 2008

REPUBLIC………………………………..………PROSECUTOR

VERSUS

DENIS MUNYARI KIHURO…………….....…….……ACCUSED

R U L I N G

When this case first came up for plea on 11th February, 2008, the court on its own motion, put on notice, Mr. Orinda, the learned Principal State Counsel appearing for the state, that it would wished to be addressed on the constitutionality of arraigning the accused in court after 14 days had long expired. This decision was informed by the provisions of section 72 (3) of the Constitution of Kenya litany of court of appeal decisions on the issue. The law is that anybody arrested on suspicion of having committed a capital offence should be brought before court within 14 days. The accused herein from the record was arrested on 14th December, 2007 and brought to court on 22nd January, 2008. That was well beyond the requisite period of 14 days. In lieu of any reasonable explanation from the state as to why it had to contravene the express provisions of the constitution, the accused’s continued prosecution would amount to a court’s validation of a contravention of a constitutional provision.

On 8th April, 2008, the trial commenced before me. Ms Mwai learned counsel appearing for the accused took up the gauntlet and raised the constitutional issue as a preliminary point. Counsel submitted that the accused was charged with three counts of murder, the offences have been committed on 10th December, 2007. The accused was arrested on 13th December, 2007. But it was until 22nd January, 2008 that he was arraigned in court. The accused was thus kept in police cells in excess of 14 days in violation of his constitutional rights. The delay had not been explained and accordingly the accused could not have a fair trial and was therefore entitled to an acquittal pursuant to section 72 (3) of the constitution and several court of appeal authorities on the issue and in particular, the case of Gerald Macharia Githuki V Republic (2007) eKLR.

In response, Ms Ngalyuka, learned state counsel invited Corporal Geoffrey Mburugu, to the stand to explain the delay as he was the investigating officer. Corporal Mburugu testified that the accused was arrested on 14th December, 2007 at Outspan Hospital, Nyeri. However he was unable to arraign him in court within the stipulated period of time as he was involved in security operations due to elections. He conceded though that there was delay in bringing the accused to court. However the delay was not intentional and or deliberate. He also conceded that the last civilian witnesses statement was recorded on 18th December, 2007 and from the police on 22nd December, 2007.

Under section 72 (3) of the supreme law of the land, that is the Constitution of Kenya, the accused is required to be arraigned in court on or before the expiry of fourteen (14) days following his arrest on a capital charge. As Justice Mutungi recently said in the case of Ann Njogu & 5 others V Republic, Misc.Cr.App.No.551 of 2007whose sentiments I share:

“…. the section is very clear and specific – that the applicants can only be kept in detention or the cells, for up to 24 hours. At the tick of the 60th minute of the 24th hour, if they have not been brought before the court, every minute thereafter of their continued detention is an unmitigated illegality as it is a violation of the fundamental and constitutional rights of the applicants…..”

In the circumstances of this case however I would substitute 24 hours with 14 days and 60th minute with the 14th day.

There is a litany of authorities in relation to the right of an accused person to be brought to court within a prescribed period of time.

On 7th July 2006 in the case of Albanus Mwasia Mutua V Republic (2006) eKLR the court of appeal held that the appellant’s constitutional rights guaranteed under section 72 (3) of the constitution had been grossly violated because he was taken before the trial magistrate some eight months from the date of his arrest and no explanation at all was offered for that delay. The court made the following pertinent remarks:

“At the end of the day, it is the duty of the courts to enforce the provisions of the Constitution, otherwise there would be no reason for having those provisions in the first place. The jurisprudence which emerges from the cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence which may be adduced in support of the charge. In this appeal, the police violated the constitutional right of the appellant by detaining him in their custody for a whole eight months and that, apart from violating his rights under section 72 (3) (b) of the constitution also amounted to a violation of his rights under section 77 (1) of the constitution which guarantees to him a fair hearing within a reasonable time. The deprivation by the police of his right to liberty for a whole eight months before bringing him to court so that his trial could begin obviously resulted in his trial not being held within a reasonable time. The appellant’s appeal must succeed on that ground alone.”

In their judgments, the judges of appeal Omolo, Githinji and Deverell JJA with Githinji JA dissenting made reference to various case law concerning violations of fair trial provisions including Ndede V Republic (1991) KLR 567 where the appellant had been arrested without a warrant on 29th September 1987 and was held in detention, in communicado, until 30th October, 1987 when he was brought before a Magistrate for plea. The period of delay was just over thirty days and Mr. Ndede was not charged with an offence carrying the death penalty. He pleaded guilty before the Magistrate on the charges preferred and was sentenced to long prison terms. He appealed to the High court against the conviction and sentence but the appeal against the conviction was struck out as being incompetent by virtue of section 348 of the Criminal Procedure Code which bars appeals from persons who have been convicted on their own pleas of guilt. The sentences were however, reduced. Mr. Ndede next appealed to the court of appeal and the court, consisting of the late Mr. Justice Gachuhi, J.A. the late Mr. Justice Masime, J.A.andMr. Justice Omolo, Ag. J.A. (as he then was) held that section 348of the Criminal Procedure Code was not an absolute bar to appeals from persons convicted on their own plea of guilty and that as there was no explanation offered for the delay of some thirty days before Mr. Ndedewas brought to court, the trial magistrate ought not to have accepted Ndede’s plea of guilty. Ndede’s appeal was allowed and his conviction quashed on that basis. It did not matter that before convicting Mr. Ndede, the Deputy Public Prosecutor had stated the facts in support of the charges, that Mr. Ndede had admitted those facts and the facts themselves had disclosed the offences charged against him. The court in the Albanus case observed that the;

“Quashing of the convictions must have been on the basis that Ndede’s constitutional rights given to him bysection 72 (3) (b)of the constitution had been violated and he was entitled to an acquittal.”

It is worth noting however that an accused person is not automatically entitled to an acquittal where the prosecution has not been given a chance to offer an explanation for failing to bring him to court on time. A year after delivering the Albanus decision the court of appeal in the case of Eliud Njeru Nyaga V Republic (2007) eKLR stated

“While we would reiterate the position that under the fair trail provisions of the constitution, an accused person must be brought to court within twenty four hours for non capital offences and within fourteen days for capital offences, yet it would be unreasonable to hold that any delay must amount to a constitutional breach and must result in automatic acquittal.”

The court noted that in the Albanuscase the prosecution had had the opportunity to explain the cause of the delay but failed to do so. See also Ronald Manyonge Chepkui V Republic (2007) eKLR.

Once again the court of appeal in April 2007 deliberated on the question of the accused being brought to court within a specific period of time in Gerald Macharia Githuku V Republic (2007) eKLR. This is the case relied on heavily by the accused in his preliminary objection. I must state that this case stands out as a remarkably bold defence of due process and the constitutional right of an arrested person. Its point of departure from the previous jurisprudence on the subject is the subordination of the proven guilt of a violent robber to the constitutionality of his treatment by law enforcement authorities after his arrest.

The appellant in this case was arraigned before the Nairobi chief Magistrate’s court on a charge of robbery with violence, which carries a mandatory sentence of death. The date of his arrest was stated in the charge sheet to have been January 13, 1995 while the date of his first arraignment in court was stated as January 30, 1995, that is 17 days latter.

The appellant was tried, convicted and sentenced to death. After his first appeal to the High court was dismissed, he appealed again to the court of appeal in which his counsel argued that the High court had erred in convicting and sentencing him when his constitutional rights had been violated.

Appeal Judges E.O. O’Kubasu, J.W. Onyango Otieno and W.S. Deverell JJA were unanimous in the defence of the accused constitutional rights. Even though the delay of three days in bringing the appellant to court did not cause him any substantial prejudice and although the evidence showed that he was guilty as charged, nevertheless the failure by the prosecution to abide by the requirements of the constitution could not be disregarded, so the court of appeal observed. The prosecution, the judges found, on whom the burden of proof rested, had failed to satisfy the court that the appellant, who was charged with a capital offence, had been brought before the court as soon as was reasonably practicable.

More recently in the case of PaulMwangi Murungu V. RepublicCriminal Appeal No.35 of 2006 (unreported) the court of appeal observed:-

“We do not accept the proposition that the burden is upon an accused person to complain to a Magistrate or a Judge about the lawful detention in custody of the police. The prosecuting authorities themselves know the time and date when an accused was arrested. They also know when the arrested person has been in custody for more than the twenty four hours allowed in the case of ordinary offences and fourteen days in the case of capital offences. Under section 72 (3) of the Constitution, the burden to explain the delay is on the prosecution, and we reject any proposition that the burden can only be discharged by the prosecution if the person accused raises a complaint. But in case the prosecution does not offer any explanation then the court as the ultimate enforcer of the provisions of the constitution must raise the issue.”

All these cases point to the need for courts to strictly observe the fair trial provisions in our constitution.

What happened in the instant case? The accused was arrested on the night of 14th December, 2007. The investigations according to the investigating officer were commenced immediately and concluded in time yet the accused was not brought before court until 22nd January, 2008. The delay according to the investigating officer was occasioned by his involvement in security operations due to elections. I do not buy this reason. The Investigating Officer was not the only officer involved in the investigation of this case. Indeed he was doing so under guidance and supervision of an inspector of police. There is no reason why the inspector of police could not have handled the case and comply with the law whilst the other investigating officer was out of station on operation duties. The constitutional rights of a citizen cannot be subordinated to operation duties of police officers.

The law of the land has to be obeyed particularly by those entrusted to enforce it. The police should be in the forefront of obeying the law and enforcing it. If the supreme law of the land says that an accused person has to be brought before court within 24 hours in the event of a non-capital offence and 14 days for a capital one, that law must be strictly observed failing which the police have a burden cast on them to satisfy the court that the accused had been brought before court as soon as was reasonably practicable. I do not think that the Investigating Officer herein has been able to discharge that heavy burden in the circumstances of this case.

I think that the Investigating Officer was just lax, did not treat this case with the seriousness it deserved and had no qualms trampling upon the accused’s constitutional rights more so fair trial provisions of the Constitution of Kenya.

We are no longer in 1980’s where the fundamental rights of the citizens were trampled upon by the police. The courts of law could not stand up to challenge such conduct. As the court of appeal said recently the courts chose to see no evil and hear no evil giving rise to the infamous Nyayo house torture chambers. The consequences of this silence of conspiracy on the part of the courts was as the court of appeal went on to observe the infamous Nyayo house torture chambers, a history which the courts can never be proud of. It should never be allowed to happen again in this country. It was a result of the foregoing legacy that the citizens of this country lost faith in the judiciary particularly when it came to enforcement and securing the constitutional and fundamental rights of the citizenry. Time is nigh for the judiciary to rise to the occasion and reclaim its mantle by scrupulously applying the law that seeks to secure, enhance and protect the fundamental rights and freedoms of an accused person. A prosecution mounted in breach of the law is a violation of the rights of the accused and it is therefore a nullity. It matters not the nature of the violation. It matters not that the accused was brought to court one day after the expiry of the statutory period required to arraign him in court. As long as that delay is not explained to the satisfaction of the court, the prosecution remains a nullity. For the court of appeal said again in the case of Albanus Mwasia Mutua:

“….. At the end of the day it is the duty of the courts to enforce the provisions of the constitution, otherwise there would be no reason for having those provisions in the first place…..”

In the end, and for the above reasons, I hold that the accused having been brought in court in breach of the provisions of section 72 (3) of the constitution and the explanation given being unsatisfactory his continued prosecution is illegal and a violation of his constitutional rights. Accordingly he is acquitted of the charges, I order for his immediate release, unless he is otherwise lawful held.

Dated and delivered at Nyeri this 19th day of May, 2008.

M.S.A. MAKHANDIA

JUDGE