[2015] KEHC 1486 (KLR)
The court found that although the application was made in a murder case and could be seen as seeking to address issues belonging to another forum, the accused persons are in custody and unable to protect their rights as free persons would. The court held that, in the interest of justice and in light of the...
Source-derived case information.
- Citation
- [2015] KEHC 1486 (KLR)
- Parties
- Applicant: Republic; Defendant: Mtsumba Mumba; Defendant: Jumaa Mumba Pekeshe
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 42 of 2013
- Procedural Posture
- Criminal Case / Ruling on Interlocutory Application
- Outcome
- Application allowed. Investigation ordered.
- Judges
- DO Chepkwony
- Legal Topics
- Pretrial Rights, Judicial Discretion, Constitutional Rights, Investigation Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Mtsumba Mumba
Defendant
Jumaa Mumba Pekeshe
Defendant
Procedural Posture
Criminal Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court should direct the Investigating Officer to investigate claims of the accused persons regarding their uncle's actions while they are in custody.
- 2 Whether the accused persons' rights are being infringed due to their inability to protect their property while in custody.
- 3 Whether the court can disregard procedural technicalities to address the accused persons' predicament.
Ratio Decidendi
The court found that although the application was made in a murder case and could be seen as seeking to address issues belonging to another forum, the accused persons are in custody and unable to protect their rights as free persons would. The court held that, in the interest of justice and in light of the constitutional mandate to disregard procedural technicalities, it was appropriate to direct the office of the Director of Public Prosecution to instruct the police to investigate the accused persons' claim against their uncle. If the investigation finds the uncle culpable, appropriate action should be taken. The court thus prioritized substantive justice over procedural formality, given...
Court Disposition
Application allowed. Investigation ordered.
Orders
- The office of the Director of Public Prosecution Coast region is to instruct the police to investigate the accused persons' claim against their uncle, Jumapili Pekeshe Dume.
- If the investigation finds the uncle culpable, action is to be taken against him accordingly.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CRIMINAL CASE NO. 42 OF 2013
REPUBLIC…………………………………………………… PROSECUTOR
VERSUS
1. MTSUMBA MUMBA
2. JUMAA MUMBA PEKESHE……….…....…………………… ACCUSED
RULING
This is a Ruling in an application by Counsel for the accused persons, Mr. Nabwana seeking to have the Investigating Officer investigate a claim by the accused persons that while they are in custody for failure to raise bond terms, their uncle, Jumapili Pekeshe Dume has chased away their mother and is selling their land making them extremely helpless and apprehensive. Mr. Nabwana has made the application under Article 159 (2) (f) of the Constitution.
He further prays that the Investigating Officer, after investigating the claim furnishes the report to the D.P.P. for action.
M/S Ochollla for the state objected to the application terming it misplaced since the case in which the same has been made is a murder case. She urged the defence counsel not to use the fact to get orders but have the accused’s rights, if he feels have been infringed, addressed by the right court.
In considering the said application, I wish to appreciate the provisions of Article 159 (2) (a) and (d) of the Constitution.
Article 159 (2) of the Constitution provides that;-
“In exercising judicial authority, the court and tribunals shall be guided by the following principles:
(c) Justice shall be done to all irrespective of status;
(d) Justice shall be administered without undue regard to procedural technicalities;
While I agree with the prosecution that this is a murder case and that by this application the defence counsel may be seeking to have issues in another case determined in another, I have considered the circumstances in which the accused find themselves. They are in custody and hence unable to fight for their rights as would be free persons. And if their claim is true, it would only be prudent to conclude that their said uncle is taking advantage of their incarceration to vent injustice on their family and made them helpless.
As such, it would only be in the interest of justice, to disregard all procedure and forum so as to address the predicament the accused find themselves in.
I therefore urge the office of the Director of Public Prosecution to exercise the powers bestowed upon them under Article 157(6) of the Constitution which provides the;-
“The Director of Public Prosecutions shall exercise state powers of prosecution and may:-
Institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed.”
The claim by the accused against their uncle borders on criminality. I direct that the office of the Director of Public Prosecution Coast region, instructs the police to investigate the said claim and if it is found the accused person’s uncle, Jumapili Pekeshe Dume is culpable, action be taken against him accordingly.
Ruling delivered, dated and signed this 4th day of November, 2015.
D.O. CHEPKWONY
JUDGE
In the presence of:
M/S Ocholla for the state
Mr. Nabwana for Accused persons
Court Assistant Mr. Kiarie
Court – The Ruling read out and to be typed and parties to be furnished with the same for further and/or necessary action. Hearing on 9/12/15.
D.O. CHEPKWONY
JUDGE