[2010] KEHC 2207 (KLR)
Although the accused was not brought before the court within the constitutionally prescribed 14 days, the delay was occasioned by the Christmas and New Year holidays, during which the police completed investigations and forwarded the file to the Attorney-General. The court found that the delay was not inordinate or...
Source-derived case information.
- Citation
- [2010] KEHC 2207 (KLR)
- Parties
- Applicant: Republic; Respondent: Mercy Kemunto
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2009
- Procedural Posture
- Criminal Case / Ruling on Constitutional Petition Regarding Pre Trial Detention
- Outcome
- petition dismissed
- Judges
- DK Musinga
- Legal Topics
- Pre Trial Detention, Right to Be Brought to Court, Constitutional Rights Violation, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mercy Kemunto
Respondent
Procedural Posture
Criminal Case / Ruling on Constitutional Petition Regarding Pre Trial Detention
Legal Issues
- 1 Whether the accused's constitutional right under section 72(3)(b) of the Constitution of Kenya to be brought before court within 14 days was violated.
- 2 Whether the delay in arraigning the accused in court was justified by the circumstances.
Ratio Decidendi
Although the accused was not brought before the court within the constitutionally prescribed 14 days, the delay was occasioned by the Christmas and New Year holidays, during which the police completed investigations and forwarded the file to the Attorney-General. The court found that the delay was not inordinate or deliberate, and the explanation provided by the police was satisfactory. Therefore, there was no violation of the accused's constitutional rights under section 72(3)(b) of the Constitution of Kenya, and the petition was dismissed.
Court Disposition
petition dismissed
Orders
- The petition is dismissed.
- The petitioner's criminal case shall proceed in the usual manner.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE 1 OF 2009
REPUBLIC …………………………………………………. PROSECUTOR
VERSUS
MERCY KEMUNTO …………………………………………….. ACCUSED
RULING
The applicant filed a petition dated12th April, 2010. She stated that on11th December, 2008she was arrested in connection with the death of oneMeshack Onyiego Amwata.She was arraigned in court on2nd January 2009. On that day she was taken before the deputy registrar, who fixed the date for plea on12th February, 2009. She claimed that she had been held incommunicado for a period of 20 days.She urged the court to find that her constitutional right as provided for undersection 72 (3) (b)of theConstitution of Kenyahad been violated.
The hearing of the petitioner’s case commenced and several witnesses have testified.
Police Constable Nicholas Kipkorir Koechof Kisii Central Police station swore a replying affidavit and stated that he arrested the petitioner on12th December, 2008. He completed the investigations on24th December, 2008and forwarded the file to the District Criminal Investigations Officer, Kisii for onward transmission to the Attorney-General’s office.On29th December, 2008the file was forwarded to the Attorney-General’s Office Kisii.On31st December, 2010, Mr. Kemo, Senior Principal State counsel returned the file to the District Criminal Investigation Officer having advised that the petitioner be charged with murder.PC Koech prepared the information and soon after the New Year holiday the petitioner was arraigned in court on2nd January 2009.
From the above information, it is evident that the petitioner was not taken to court within 14 days as required.That notwithstanding, it is worth noting that there were several public holidays between12th December 2008and2nd January 2009. Over the said period the police did all they could to complete their investigations and submit the file to the office of the Attorney-General.The investigations were completed within a period of 12 days.It is mainly the Christmas and New Year holiday which caused a delay of 7 days.
In my view, that was not inordinate delay and it cannot be said that the police deliberately caused the petitioner to remain in unlawful custody.The explanation that was given by Police Constable Koech is satisfactory.Consequently, I dismiss this petition.The petitioner’s case shall proceed in the usual manner.
DATED, SIGNED AND DELIVERED AT KISII THIS 12TH DAY OF JULY, 2010.
D. MUSINGA
JUDGE.
12/7/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Mutai for the state
N/A for the Accused
Court:Ruling delivered in open court on12th July, 2010.
D. MUSINGA
JUDGE.