[2009] KEHC 2977 (KLR)
The court found that the ruling dated 29th September, 2008 by Mutungi J. was explicit in its reference to only one accused person, using singular language throughout. The proceedings showed that the defence counsel was stopped from making submissions on behalf of the second accused, and the trial judge directed that...
Source-derived case information.
- Citation
- [2009] KEHC 2977 (KLR)
- Parties
- Applicant: Republic; Defendant: Muia; Defendant: Thomas Kilonzo Mbithe
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 10 of 2006
- Procedural Posture
- Criminal Case / Ruling on Application Regarding Release of Second Accused
- Outcome
- application rejected; second accused to remain in lawful custody
- Judges
- A. Ong’injo
- Legal Topics
- Preliminary Objection, Unlawful Detention, Judicial Release Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Muia
Defendant
Thomas Kilonzo Mbithe
Defendant
Procedural Posture
Criminal Case / Ruling on Application Regarding Release of Second Accused
Legal Issues
- 1 Whether the ruling dated 29th September, 2008 by Mutungi J. released both accused persons or only the first accused.
- 2 Whether the continued detention of the second accused (A2) is lawful.
- 3 Whether the police misused their powers in re-arresting and re-charging the second accused.
Ratio Decidendi
The court found that the ruling dated 29th September, 2008 by Mutungi J. was explicit in its reference to only one accused person, using singular language throughout. The proceedings showed that the defence counsel was stopped from making submissions on behalf of the second accused, and the trial judge directed that any preliminary objection regarding the second accused should be filed separately. The court concluded that only the first accused was released by the earlier ruling, and the continued detention of the second accused was lawful. The application by the defence counsel for the release of the second accused was therefore rejected.
Court Disposition
application rejected; second accused to remain in lawful custody
Orders
- Application by defence counsel in relation to the second accused is rejected.
- The court will fix a hearing date for the second accused, who remains in lawful custody.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Criminal Case 10 of 2006
REPUBLIC..................................................................................APPLICANT
-VSKYALO
MUIA................................................................1ST DEFENDANT
THOMAS KILONZO MBITHE...................................2ND DEFENDANT
RULING
This ruling relates to an application that was made by Ms. Celine Odembo on behalf of the A2 — viz, Thomas Kilonzo Mbithe. In her application she submitted that Mutungi J. had actually released both the accused in his ruling dated 29th September, 2008. However, after about six months, the A2 was re-arrested and re-charged in court on 4th March, 2009. In addition to the above, she also claimed the police were misusing their powers to intimidate and harass the accused person. From the foregoing, it is crystal clear that the preliminary objection was handled by Mutungi J. who has now retired from the public service following a chequered career. Having gone through the proceedings of 12th June, 2008, it is crystal clear that the defence Counsel only referred to the A1 in her submissions. Apart from the above, the proceedings clearly show the trial Judge had stopped the defence Counsel from making any submissions on the A2. He went further and gave directions that the preliminary objection relating to A2 should be filed separately since the same raised different legal issues. Further to the above, the Ruling dated 29th September, 2008 refers to only one accused person. Four examples would suffice to drive home the point. On pg. 1 — the trial Judge stated at the end the following words:
“inter alia that he was …….”
On pg. 3 — line two, the trial Judge stated the words
…”that the accused was kept in police custody for 77 days ….”
Similarly, on pg. 4 — line five, the trial Judge used the following words:
….”and the accused was already in custody, …”
Lastly, on pg. 5 — at line seven, the learned Judge stated as follows:
…, “unless he is otherwise lawfully held …”
The words used by the learned Judge are very explicit and succinct. All those words refer to one person. The words are in singular. They cannotbe said to be vague by any stretch of imagination. The upshot is that I hereby find that it was only the A1 who was released y the learned Judge. I hereby reject the application by the defence counsel in relation to the A2. The court will go ahead and fix the hearing date for the A2 who is being held in custody lawfully. Those are the orders of this court.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open court in the presence of the A2;
Ms. Odembo Celine Defence Counsel
Ong’ondoState Counsel
MUGA APONDI
JUDGE
22ND MAY, 2009
Court:
Hearing on 29th and 30th July, 2009 in Court No. 3. Accused remanded in custody.
MUGA APONDI
JUDGE
22ND MAY, 2009