[2010] KEHC 1830 (KLR)
The court found that, based on the record, the accused was likely presented before the magistrate's court for committal proceedings prior to 20th August 2003. Therefore, it could not be determined that the accused was first brought to court on 20th August 2003 as alleged. Without evidence or submissions regarding...
Source-derived case information.
- Citation
- [2010] KEHC 1830 (KLR)
- Parties
- Respondent: Republic; Defendant: Mutabari Mithika Koome
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 77 of 2003
- Procedural Posture
- Criminal Case / Preliminary Objection Ruling
- Outcome
- Ruling deferred for further address by the state on committal proceedings.
- Legal Topics
- Pretrial Detention, Constitutional Rights, Committal Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Mutabari Mithika Koome
Defendant
Procedural Posture
Criminal Case / Preliminary Objection Ruling
Legal Issues
- 1 Whether the accused was detained beyond the constitutional period provided under section 72(3)(b) of the Constitution.
- 2 Whether the accused was first brought before a court on 20th August 2003 or earlier.
- 3 Whether the accused's constitutional rights under section 72(3)(b) were violated.
Ratio Decidendi
The court found that, based on the record, the accused was likely presented before the magistrate's court for committal proceedings prior to 20th August 2003. Therefore, it could not be determined that the accused was first brought to court on 20th August 2003 as alleged. Without evidence or submissions regarding the committal proceedings, the court could not make a determination on whether the accused's constitutional rights under section 72(3)(b) were violated. The matter was deferred for further address by the state on the committal proceedings.
Court Disposition
Ruling deferred for further address by the state on committal proceedings.
Orders
- A date to be given for the state to address the court on the committal proceedings that the accused went through.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Criminal Case 77 of 2003
REPUBLIC ................................................ PROSECUCOR
VERSUS
MUTABARI MITHIKA KOOME ................ ACCUSED
RULING
The accused in this matter raised a preliminary objection based on section 72 (3) (b) of the Constitution.He alleged that he was arrested on 8th April 2003 and that he was detained in custody until 20th August 2003. He argued that he was detained beyond the 14 days that are provided for one to be kept in custody in case of capital offence under Section 72 (3) (b).It is indeed unfortunate that the investigating officer, although well informed by the learned state counsel that the objection was to be heard failed to attend court.The burden of proving that a person has been taken to court within the specified period in Section 72 (3) (b) lies upon the person alleging that the one in custody was brought to court as soon as was reasonably practicable.I say it is unfortunate because as I perused the court file, I found that on 20th August 2003 the accused was brought before Justice Kasanga Mulwa when plea was taken.What the Judge wrote thereafter is very telling.The Judge wrote:-
“Case to be withdrawn from magistrate’s court.”
From that, it does seem that the accused more than likely had been taken before the magistrate’s court for committal proceedings.That was the law then before it was changed.That being so, the accused cannot say that he was first produced before court on 20th August 2003. It is obvious that he had been presented before the magistrate’s court way before 20th August 2003. I therefore find that I cannot make a determination whether or not the accused person’s constitutional rights were violated without being addressed on the other matter, that is, the committal matter before the magistrate’s court.For that reason, at the reading of this ruling, I will give a date when the state will address the court on the committal proceedings that the appellant went through.
Dated and delivered at Meru this 26th day of July 2010.
MARY KASANGO
JUDGE