[2009] KEHC 3932 (KLR)
The court found that the accused was not brought to court within the constitutionally mandated 14 days after his arrest for a capital offence, and the prosecution failed to provide any satisfactory explanation for this delay. The argument that the accused was charged afresh after a mistrial did not cure the original...
Source-derived case information.
- Citation
- [2009] KEHC 3932 (KLR)
- Parties
- Respondent: Republic; Applicant: Julius Mbuthia Karitha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 59 of 2006
- Procedural Posture
- Criminal Case / Ruling on Constitutional Application Challenging Legality of Proceedings
- Outcome
- application allowed; proceedings declared a nullity; accused acquitted and ordered released
- Judges
- CM Kariuki
- Legal Topics
- Pre Trial Detention, Right to Be Brought to Court, Unlawful Detention, Acquittal Due to Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Julius Mbuthia Karitha
Applicant
Procedural Posture
Criminal Case / Ruling on Constitutional Application Challenging Legality of Proceedings
Legal Issues
- 1 Whether the accused's right under section 72(3)(b) of the Constitution to be brought to court within 14 days of arrest for a capital offence was violated.
- 2 Whether the delay in bringing the accused to court rendered the proceedings a nullity and entitled the accused to an acquittal.
Ratio Decidendi
The court found that the accused was not brought to court within the constitutionally mandated 14 days after his arrest for a capital offence, and the prosecution failed to provide any satisfactory explanation for this delay. The argument that the accused was charged afresh after a mistrial did not cure the original illegality, as there was no evidence of a court order releasing the accused or any other charge in the court file. The affidavit presented by the prosecution merely recounted the chronology of events and did not address the constitutional requirement or provide justification for the delay. Based on established legal principles and precedent, the court held that the proceedings...
Court Disposition
application allowed; proceedings declared a nullity; accused acquitted and ordered released
Orders
- The proceedings are declared a nullity.
- The accused is acquitted.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Case 59 of 2006
REPUBLIC. …………………………………………….. PROSECUTOR
VERSUS
JULIUS MBUTHIA KARITHA. …........………………….….. ACCUSED
R U L I N G
The accused/applicant, JULIUS MBURIA KARITHA, was on 8th June, 2006, charged with the murder of NJATHI MAINA, contrary to section 203 as read with section 204 of the Penal code, cap 63, Laws of Kenya.
The offence is alleged to have been committed on 20th April 2003 at Dagoretti corner shopping centre, Nairobi, jointly with others not before court.
On 21st May, 2008 the accused challenged the legality of these proceedings on the basis that the same violate his fundamental rights, enshrined in section 72(3) (b) of the constitution in that he was arrested on 24th April, 2003 and was not brought to court until 15th October, 2003.
The provisions of section 72 (3) (b) of the constitution under which the application is brought are to the effect that a person arrested on reasonable suspicion of having committed a capital offence must be brought to court as soon as is reasonably practicable and at any rate not later than 14 days of his arrest.
Any proceedings instituted after the expiry of the 14 days is illegal null and void and the accused must be acquitted unless the prosecution can satisfactorily explain the delay to the court.
On the basis of the foregoing facts and the law, the accused urges this court to acquit him and release him forthwith.
In support of his application the accused cited and relied on Miscellaneous Application Number 551 of 2007 – ANN NJOGU Versus REPUBLIC.
In opposition, the state relied on an affidavit by Cpl. Richard Matoke, dated 23rd February, 2009. The learned counsel further submitted that the case declared a mistrial in 2006, and accused was charged a fresh on 8th June, 2006, and accused thus brought to court on time, and there was no delay.
I have perused the said affidavit, and considered the submissions by both counsels. There is no evidence that the accused was ever released pursuant to a court order since 24th April, 2003. Even if the charge on 8th June, 2006 were a fresh charge and this is not true given that that is no other charge in the court file, and even if there were, that would not cure the original illegal proceedings before the same were declared a mistrial.
Further, the affidavit does not in any way explain the delay, as section 72(3) (b) of the constitution has been interpreted by the courts over the last two or so decades.
The gist of all such interpretation is captured in the now overcited Criminal appeal Number 120 of 2004 – ALBANUS MWAISA MUTUA Versus REPUBLIC.
The affidavit before me is nothing more than a chronology of the events since arrest, and that does not meet the test set by the court of appeal in the above Mutua Case.
Accordingly, I hold these proceedings to be a nullity and to that and, I acquit the accused and order for his immediate release unless he is otherwise lawfully held.
Dated and delivered in Nairobi, this 4th Day of May, 2009.
……… ………………
O K MUTUNGI
JUDGE