[2010] KEHC 140 (KLR)
The court found that the accused had been in remand custody for over five years and that the prosecution had failed to present any evidence or witnesses on three consecutive occasions without valid explanation. This persistent delay violated the accused's constitutional right to a fair and speedy trial as enshrined...
Source-derived case information.
- Citation
- [2010] KEHC 140 (KLR)
- Parties
- Applicant: Republic; Defendant: Joseph Kiele Muli
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2005
- Procedural Posture
- Criminal Case / Ruling on No Case to Answer / Acquittal
- Outcome
- acquittal
- Judges
- JV Juma
- Legal Topics
- Murder Trial, Right to Fair Trial, Unreasonable Delay, Acquittal, Criminal Procedure, Remand Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Kiele Muli
Defendant
Procedural Posture
Criminal Case / Ruling on No Case to Answer / Acquittal
Legal Issues
- 1 Whether the accused's right to a fair and speedy trial under Article 50(2)(e) of the Constitution was violated due to repeated delays by the prosecution.
- 2 Whether the absence of prosecution witnesses and failure to present evidence justifies an acquittal under Section 306(1) of the Criminal Procedure Code.
Ratio Decidendi
The court found that the accused had been in remand custody for over five years and that the prosecution had failed to present any evidence or witnesses on three consecutive occasions without valid explanation. This persistent delay violated the accused's constitutional right to a fair and speedy trial as enshrined in Article 50(2)(e) of the Constitution of Kenya. Furthermore, since no evidence was presented by the State in the re-trial, Section 306(1) of the Criminal Procedure Code mandated an acquittal. The court concluded that to continue detaining the accused or further delay the proceedings would be an infringement of his rights, and therefore entered a verdict of not guilty and...
Court Disposition
acquittal
Orders
- The accused Joseph Kiele Muli is acquitted under Section 306(1) of the Criminal Procedure Code.
- The accused shall be released from custody forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE NO. 1 OF 2005
REPUBLIC ……….....................................………………………….... PROSECUTOR
VERSUS
JOSEPH KIELE MULI …………........................................….……………… ACCUSED
RULING
The Accused JOSEPH KIELE MULI was arraigned before the High Court Mombasa on 6th January 2005 on a charge of MURDER CONTRARY TO SECTION 203 as read with S. 204 OF THE PENAL CODE. The particulars of the charge were that
“On the 5th day of December 2004 at Kidomaya ‘B’ Village in Kwale District within Coast Province, jointly with others not before court murdered ITAA KASILI MUSUNGULI”
The Accused entered a plea of ‘Not Guilty’ to the charge and his trial commenced on 24th April 2007 before HON. MR. JUSTICE J. SERGON who took the evidence of twelve (12) prosecution witnesses. At the time the trial started assessors were present in court pursuant to the provisions of S. 306 of the Criminal Procedure Code. However following the passing of the Statute Law (Miscellaneous Amendments) Act in the year 2007 the requirement that assessors sit in on murder trials was done away with Justice Sergon therefore discharged the assessors on 27th November 2007. However following the ruling by the Court of Appeal in the case of BERNARD M’RACHI –VS- REPUBLIC CRIMINAL APPEAL 114 of 2008this was held to be unprocedural. As such Justice Sergon in his ruling dated 25th June 2010 declared a mistrial and directed that the case begin de novo. Dates for the hearing given but the State failed to avail a single witness. On three subsequent dates the State was unable to avail any witness. Article 50(2) (e) of the Constitution of Kenya provides
“Every accused person has the right to a fair trial, which includes the right –
to have the trial begin and conclude without unreasonable delay”
In this case the accused has been in remand custody for over five (5) years awaiting the conclusion of his case. On three occasions the State have been unable to proceed due to absence of witnesses. No valid reason is given why the witnesses are not in court. To further delay this matter will infringe the accused’s rights to a speedy trial. No evidence has been presented by the State in the re-trial. I therefore enter a verdict of ‘not guilty’ under S. 306(1) of the Criminal Procedure Code and acquit the accused.
Dated and Delivered in Mombasa this 20th day of December 2010.
M. ODERO
JUDGE
Read in open court in the presence of Mr. Ngigi holding brief for Mr. Njiru for Accused
Mr. Onserio for State
M. ODERO
JUDGE
20. 12. 2010