[2009] KEHC 2040 (KLR)
The court found that the accused was presented to the magistrate court on the same day as his arrest, in compliance with constitutional requirements. The subsequent delay was due to the procedural requirements of preparing the committal bundle under the then applicable law, not a violation of the accused's...
Source-derived case information.
- Citation
- [2009] KEHC 2040 (KLR)
- Parties
- Applicant: Republic; Defendant: Jackson Kithinji Buruki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 38 of 2003
- Procedural Posture
- Criminal Case / Ruling on Preliminary Objection Before Defence Hearing
- Outcome
- preliminary objection dismissed; defence hearing to proceed
- Judges
- MM Kasango
- Legal Topics
- Murder Charge, Preliminary Objection, Right to Be Brought to Court, Pre Trial Detention, Committal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Jackson Kithinji Buruki
Defendant
Procedural Posture
Criminal Case / Ruling on Preliminary Objection Before Defence Hearing
Legal Issues
- 1 Whether the accused's constitutional right under section 71(3)(b) of the Constitution was violated by being held in custody for 42 days before being brought to court.
- 2 Whether the delay in arraignment was justified under the prevailing committal procedures.
Ratio Decidendi
The court found that the accused was presented to the magistrate court on the same day as his arrest, in compliance with constitutional requirements. The subsequent delay was due to the procedural requirements of preparing the committal bundle under the then applicable law, not a violation of the accused's constitutional rights. Therefore, the preliminary objection lacked merit and was dismissed, allowing the defence hearing to proceed.
Court Disposition
preliminary objection dismissed; defence hearing to proceed
Orders
- The preliminary objection is dismissed.
- The defence hearing shall proceed.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU Criminal Case 38 of 2003
REPUBLIC ………………………………………. PROSECUTOR
VERSUS
JACKSON KITHINJI BURUKI ………...........………. ACCUSED
RULING
The accused was charged with murder contrary to section 203 as read with 204 of the Penal Code. He was committed for trial to the High Court on 31st July 2003. The prosecutions case has been heard and at the point at which the defence case was to be heard, the accused raised a preliminary objection that his constitutional rights embodied in section 71(3) (b) of the Constitution were violated. Counsel for the accused submitted that the accused was arrested on 26/4/2002. That he was arraigned in court on 7th June 2002. He estimated that the accused person was held in custody for 42 days before being brought to court. The investigating officer in this case was called to explain. He stated that indeed the accused was arrested on 26th April 2002 and because during that time the procedure of committing an accused to the High Court for trial by the magistrate court was a place the accused was therefore presented to the magistrate court on the same day of arrest. The procedure of committal for trial in the High Court of persons facing murder charge under S. 230 to 235 Criminal Procedure Code, now repealed, was then operational. That what took long thereafter was the preparation of the committal bundle which had been forwarded to the state counsel. The proceedings in the lower court began on 7th June 2002. In view of the explanation given by the investigating officer, it is clear that the accused person’s constitutional rights were not violated. He was presented to court the same day he was arrested. That being so, I find that there is no merit in his preliminary objection and I do hereby dismiss the same and order that the defence hearing do proceed.
Dated and delivered at Meru this day of 1st October 2009.
MARY KASANGO
JUDGE