[2010] KEHC 1402 (KLR)
The court found that the applicant was detained for 144 days before being brought to court, far exceeding the constitutional requirement of 14 days for arraignment on a capital offence. No explanation for the delay was provided by the police or prosecution. Citing established precedent, the court held that such...
Source-derived case information.
- Citation
- [2010] KEHC 1402 (KLR)
- Parties
- Respondent: Republic; Applicant: Michael Nyamengo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 28 of 2007
- Procedural Posture
- Criminal Case / Ruling on Constitutional Application Prior to Trial
- Outcome
- acquittal
- Judges
- DK Musinga
- Legal Topics
- Pre Trial Detention, Right to Be Brought to Court, Violation of Constitutional Rights, Unexplained Delay, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Michael Nyamengo
Applicant
Procedural Posture
Criminal Case / Ruling on Constitutional Application Prior to Trial
Legal Issues
- 1 Whether the applicant's constitutional right under section 72(3)(b) of the Constitution was violated by being detained for 144 days before being arraigned in court.
- 2 Whether the unexplained delay in arraignment renders the murder charge unsustainable.
Ratio Decidendi
The court found that the applicant was detained for 144 days before being brought to court, far exceeding the constitutional requirement of 14 days for arraignment on a capital offence. No explanation for the delay was provided by the police or prosecution. Citing established precedent, the court held that such unexplained and inordinate delay constitutes a violation of the applicant's constitutional rights. Consequently, the murder charge against the applicant could not be sustained, and he was acquitted and ordered to be released unless otherwise lawfully held.
Court Disposition
acquittal
Orders
- The applicant is acquitted of the charge of murder.
- The applicant is to be set at liberty forthwith unless otherwise lawfully held.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Criminal Case 28 of 2007
REPUBLIC ………………………………………………….. ACCUSED
VERSUS
MICHAEL NYAMENGO .………………………………….. ACCUSED
RULING
The applicant’s application dated 28th April, 2010 urges this court to make a finding that his constitutional rights were violated because he was arrested on 5th February, 2007 but he was not taken to court until 9th July, 2007, a period of 144 days.All along he had been remanded at Keroka Police station.Eventually he was charged with murder.The application was brought pursuant to the provisions of,inter alia,section 72 (3) (b)of theConstitution.
Mr. Gitonga, State Counsel, told the court that an explanation had been sought from the police as to why there was such inordinate delay but none was given.
It is now trite law that un explained delay in arraigning an accused person in court amounts to violation of his constitutional right and any charge preferred against him in such a situation cannot be sustained.SeeALBANUS MWASIA MUTUA –VS-REPUBLIC, Criminal Appeal No. 120 of 2004. The delay herein was inordinately long and the police were unable to explain why they were unable to take the applicant to court within the statutory period of 14 days from the date of his arrest or soon thereafter.
In the circumstances, I find that the applicant’s constitutional right was violated and proceed to acquit him of the charge of murder that was preferred against him.He is set at liberty forthwith unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT KISII THIS 13th DAY OF July 2010.
D. MUSINGA
JUDGE
13/7/2010
Before D. Musinga, J
Mobisa-cc
Mr. Muturi for the state
Mr. Okenye for the accused
COURT;-Ruling delivered in open court on 13th July 2010.
D. MUSINGA
JUDGE