[2009] KEHC 2396 (KLR)
The court found that the applicants were arrested on 7th April 2008 and held in police custody until 9th April 2008, when they were arraigned in court. The police failed to provide any explanation for the delay in bringing the applicants before the court. The court applied the principle that unexplained delay in...
Source-derived case information.
- Citation
- [2009] KEHC 2396 (KLR)
- Parties
- Plaintiff: Republic; Applicant: Douglas Gekonge; Applicant: Simon Nyakundi; Applicant: Jacob Mangwana
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 17 of 2008
- Procedural Posture
- Constitutional Reference / Ruling
- Outcome
- acquittal
- Legal Topics
- Right to Be Brought to Court Within 24 Hours, Unlawful Detention, Violation of Fundamental Rights, Possession of Narcotic Drugs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Plaintiff
Douglas Gekonge
Applicant
Simon Nyakundi
Applicant
Jacob Mangwana
Applicant
Procedural Posture
Constitutional Reference / Ruling
Legal Issues
- 1 Whether the delay in arraigning the applicants before court violated their constitutional rights under section 72(3) and (5) of the Constitution.
- 2 Whether unexplained delay in bringing accused persons to court warrants acquittal irrespective of the evidence against them.
Ratio Decidendi
The court found that the applicants were arrested on 7th April 2008 and held in police custody until 9th April 2008, when they were arraigned in court. The police failed to provide any explanation for the delay in bringing the applicants before the court. The court applied the principle that unexplained delay in arraignment constitutes a violation of the constitutional right to be brought to court within 24 hours, as provided under section 72(3) and (5) of the Constitution. Citing Albanus Mwasia Mutua v Republic, the court held that such a violation, when unexplained, mandates acquittal regardless of the evidence against the accused. Consequently, the court acquitted the applicants and...
Court Disposition
acquittal
Orders
- The applicants are acquitted of the charge preferred against them before the trial court.
- The applicants are set at liberty unless otherwise lawfully held.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Constitutional Reference 17 of 2008
IN THE MATTER OF SECTION 84(3) OF THE CONSTITUTION
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL
RIGHTS AND FREEDOM UNDER SECTION 72(3) AND (5) OF THE CONSTITUTION OF KENYA.
IN THE MATTER OF CRIMINAL CASE NO. 662 OF 2008 KISII CM’S COURT.
BETWEEN
REPUBLIC..........................................................................PLAINTIFF
VERSUS
1. DOUGLAS GEKONGE
2. SIMON NYAKUNDI
3. JACOB MANGWANA……………… APPLICANTS/ACCUSED
RULING
The applicants were charged with possession of cannabis sativa contrary to section 3(2)(a) and 4(1) of the Narcotic Drugs Psychotropic Substances Control ActNo.4 of 1994. The offence was said to have been committed on the 7th day of April 2008. The applicants were found in possession of four rolls of cannabis sativa valued at about Kshs.40/=.
The applicants were arrested on 7th April 2008 and held in police custody until 9th April 2008 when they were arraigned in court.
Before commencement of their trial, the applicants told the trial court that the delay in arraigning them before court amounted to violation of the constitutional rights. The learned trial magistrate framed the issues for determination and forwarded the matter to this court.
The police were given the opportunity to explain why there was delay in bringing the applicants to court but they failed to offer any explanation at all.
It is now trite law that that unexplained delay in arraigning accused persons before court amounts to violation of their constitutional right.
Unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of the evidence that may be adduced in support of the charge, as was held in ALBANUS MWASIA MUTUA VS REPUBLIC, Criminal Appeal No.120 of 2004. In this case the police should have taken the applicants to court within 24 hours of their arrest. Having failed to do so, they were also unable to explain to this court why there was such delay. Consequently, I hold and find that the police violated the applicant’s constitutional right and hereby acquit them of the charge that was preferred against them before the trial court. The applicants are set at liberty unless otherwise lawfully held.
DATED, SIGNED and DELIVEREDat KISII this 15th day of May, 2009
D. K. MUSINGA.
JUDGE
Delivered in the open court in the presence of:
1. Mr. Nyambati for Applicants
2. Mr. Mutai for the Republic.
D. K. MUSINGA.
JUDGE.