[2009] KEHC 1965 (KLR)

[2009] KEHC 1965 (KLR)

The court found that while the initial delay in charging the accused was justified by the need to obtain a postmortem report, the subsequent unexplained delay of 28 days before arraignment constituted a violation of the accused's constitutional rights. However, the court held that such a violation does not automatically warrant an acquittal. Instead, the interests of justice require that the case proceed to hearing on its merits, and the accused is at liberty to seek compensation for the rights violation under section 72(6) of the Constitution. The preliminary objection was therefore dismissed, and the matter ordered to proceed to full hearing.

Citation
[2009] KEHC 1965 (KLR)
Parties
Applicant: Republic; Respondent: John Kipsesat Chepyator
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
29 October 2009
Case Number
Criminal Case 19 of 2009
Procedural Posture
Criminal Case / Ruling on Preliminary Objection
Outcome
preliminary objection dismissed; case to proceed to hearing
Legal Topics
Pre Trial Detention, Right to Fair Trial, Constitutional Rights Violation, Murder Charge
Source Language
English
Criminal Law Constitutional Law Pre Trial Detention Right to Fair Trial Constitutional Rights Violation Murder Charge

Case Brief

Summary, issues, holding and outcome

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Parties

Republic

Applicant

John Kipsesat Chepyator

Respondent

Procedural Posture

Criminal Case / Ruling on Preliminary Objection

Legal Issues

  1. 1 Whether the accused's constitutional rights under sections 72(3)(b) and 77(2)(b) of the Constitution of Kenya were violated by being held for 126 days before being informed of the charges and brought to court.
  2. 2 Whether the delay in bringing the accused to court was justified by the need to obtain a postmortem report.
  3. 3 Whether an unexplained delay of 28 days after the postmortem before arraignment warrants an acquittal or other remedy.

Ratio Decidendi

The court found that while the initial delay in charging the accused was justified by the need to obtain a postmortem report, the subsequent unexplained delay of 28 days before arraignment constituted a violation of the accused's constitutional rights. However, the court held that such a violation does not automatically warrant an acquittal. Instead, the interests of justice require that the case proceed to hearing on its merits, and the accused is at liberty to seek compensation for the rights violation under section 72(6) of the Constitution. The preliminary objection was therefore dismissed, and the matter ordered to proceed to full hearing.

Court Disposition

preliminary objection dismissed; case to proceed to hearing

Orders

  • The preliminary objection is dismissed.
  • The case against the accused shall proceed to hearing.