[2011] KEHC 1073 (KLR)
The court found that the accused had been held in custody for close to four months without being allowed to plead due to the State's failure to provide a psychiatric report. This prolonged detention without plea or release was held to be a violation of the accused's constitutional rights under Article 49(1)(i) and...
Source-derived case information.
- Citation
- [2011] KEHC 1073 (KLR)
- Parties
- Applicant: Republic; Defendant: George Otieno Onyango
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Murder Case 43 of 2011
- Procedural Posture
- Murder Case / Ruling on Pre Plea Detention and Release
- Outcome
- Accused ordered released forthwith unless otherwise lawfully held.
- Legal Topics
- Pretrial Detention, Right to Fair Trial, Mental Health in Criminal Procedure, Constitutional Rights of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
George Otieno Onyango
Defendant
Procedural Posture
Murder Case / Ruling on Pre Plea Detention and Release
Legal Issues
- 1 Whether continued detention of the accused without plea violates constitutional rights under Article 49.
- 2 Whether the accused should be released when psychiatric evaluation is delayed and plea cannot be taken.
Ratio Decidendi
The court found that the accused had been held in custody for close to four months without being allowed to plead due to the State's failure to provide a psychiatric report. This prolonged detention without plea or release was held to be a violation of the accused's constitutional rights under Article 49(1)(i) and (g) of the Constitution of Kenya. The court determined that the State's actions amounted to a technical compliance with the requirement to bring the accused before court, but failed to meet the substantive requirements of informing the accused of the charge and allowing him to plead or be released. The court emphasized that the law is clear: an accused person must either plead...
Court Disposition
Accused ordered released forthwith unless otherwise lawfully held.
Orders
- The accused is to be released forthwith unless he is lawfully otherwise held.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
MURDER CASE NO. 43 OF 2011
REPUBLIC -------------------------------------------------------------------- PROSECUTOR
-VERSUS-
GEORGE OTIENO ONYANGO ------------------------------------------------- ACCUSED
R U L I N G
The accused herein was first arraigned in court on the 27th of July, 2011. The plea in this matter was deferred for him to appear before a judge.
On 2nd August, 2011 the accused appeared before a judge but the plea was deferred to allow for psychiatric examination and appointment of counsel. On 21/9/2011 the accused intimated he had seen a doctor however State Counsel did not have a medical report and the plea was deferred. On 3/10/2011 the State Counsel did not have the report and again the plea was deferred. On 17/10/2011 accused not produced no reason was given. On 24/10/2011 the story by the State Counsel changed to the effect that the court order was not clear. This court gave specific orders and intimated that it will not hold the accused in custody unless he pleads to the offence. No report has been available again.
The Constitution of this Country protects the rights of those arrested as it does of other Kenyans. This was as a result of the inhuman and degrading manner in which remandees and prisoners were treated under the old system.
The court as custodian of the law owes a duty to all those who appear before it.
S. 47 (1)of the Constitutionprovides;
“Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”
S. 47provides;
“1. An arrested person has the right
a) to be informed promptly in a language that the person understands, of;
i) the reason for the arrest
ii) ----
iii) ----“
i)To be brought before a court as soon as reasonably possible, but not later than.
i)Twenty four hours after being arrested; or
ii)if the twenty four hours ends, outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court days.
g) At the first court appearance to be charged or informed of the reason for the detention continuing, or to be released.”
In my view the state simply brought the accused in court as a technical measure to beat Article 49 1(1)without taking into account other Sections of the Law.
It is not enough to inform the accused and require him not to plead. My reading of Article 49 (g)is that the accused should have the charge read to him and he pleads or otherwise he be released.
The accused has been held for close to 4 months against his rights as spelt under Article. 49 1(i) and (g) of the Constitution.
He cannot take plea as his mental state is unknown.
Since the law is clear that he should plead or be released in the circumstances I have no option but to release him forthwith unless he is lawfully otherwise held.
DATED AND DELIVERED THIS 27th DAY OF October, 2011.
ALI-ARONI
JUDGE
In the presence of:
………………………………………………………………..………… for State
…………………….…………….. Accused person(s) present