[2008] KEHC 1421 (KLR)
The court found that the accused was held in custody for a period exceeding the constitutionally permitted 14 days before being brought to court, in violation of Section 72(3)(b) of the Constitution. The prosecution conceded this violation. The court held that such a violation of constitutional and fundamental...
Source-derived case information.
- Citation
- [2008] KEHC 1421 (KLR)
- Parties
- Respondent: Republic; Defendant: George Kuria Gabriel
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 106 of 2006
- Procedural Posture
- Criminal Case / Ruling on Preliminary Objection
- Outcome
- proceedings declared null and void; accused ordered released forthwith unless otherwise lawfully held
- Judges
- CM Kariuki
- Legal Topics
- Pre Trial Detention, Constitutional Rights Violation, Unlawful Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
George Kuria Gabriel
Defendant
Procedural Posture
Criminal Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the accused's constitutional rights under Section 72(3)(b) of the Constitution were violated by being held in custody for more than 14 days before being brought to court.
- 2 Whether the proceedings are null and void due to the violation of constitutional rights.
Ratio Decidendi
The court found that the accused was held in custody for a period exceeding the constitutionally permitted 14 days before being brought to court, in violation of Section 72(3)(b) of the Constitution. The prosecution conceded this violation. The court held that such a violation of constitutional and fundamental rights renders the proceedings null and void, as they are founded on an illegality. Consequently, the court declared the proceedings a nullity and ordered the immediate release of the accused unless otherwise lawfully held.
Court Disposition
proceedings declared null and void; accused ordered released forthwith unless otherwise lawfully held
Orders
- The constitutional and fundamental rights of the accused under Section 72(3)(b) have been, are being, and continue to be violated by the proceedings in this Criminal Case No. 106 of 2006.
- The proceedings are declared null and void, having their genesis on an illegality.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Criminal Case 106 of 2006
REPUBLIC………………………..PROSECUTOR
VERSUS
GEORGE KURIA GABRIEL……..……. ACCUSED
R U L I N G
The preliminary Objection herein is dated 29/4/08 and is based on Sections 72(3) (b) and 77 (1) (2) (b) & ( c ) of the Constitution.
The application challenges the legality of these proceedings on the ground that the accused was held in custody beyond the constitutionally permitted period of 14 days before being brought to court.
Given that the prosecution has conceded the challenge, I rule as under
1. The Constitutional and Fundamental Rights of the accused was per Section 72(3) (b) have been, are being, and continue to be violated by the proceedings in this Criminal Case No. 106 of 2006.
2. Accordingly, I find and hold that the proceedings are null and void, the same having their genesis on an illegality.
3. I hereby order the release forthwith, of the accused, unless he is otherwise lawfully held.
DATED and delivered in Nairobi, this 27th Day of September, 2008.
O.K. MUTUNGI
JUDGE