[2009] KEHC 1758 (KLR)
The court found that the applicants were not arraigned before court within the constitutionally stipulated 14 days from the date of arrest, and that their pre-trial constitutional rights were violated. However, the Constitution does not provide that such a violation automatically entitles an accused person to...
Source-derived case information.
- Citation
- [2009] KEHC 1758 (KLR)
- Parties
- Applicant: Stephen Atiba Osore; Applicant: Ramathan Mukwali Musula; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 8 of 2009
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Constitutional Application Regarding Pre Trial Rights
- Outcome
- application dismissed
- Legal Topics
- Pre Trial Rights, Arraignment Delay, Compensation for Rights Violation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Atiba Osore
Applicant
Ramathan Mukwali Musula
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Constitutional Application Regarding Pre Trial Rights
Legal Issues
- 1 Whether the applicants' constitutional rights to be arraigned within 14 days of arrest were violated.
- 2 Whether such violation entitles the applicants to an acquittal and quashing of charges.
- 3 Whether compensation is the appropriate remedy for violation of pre-trial rights.
Ratio Decidendi
The court found that the applicants were not arraigned before court within the constitutionally stipulated 14 days from the date of arrest, and that their pre-trial constitutional rights were violated. However, the Constitution does not provide that such a violation automatically entitles an accused person to acquittal or quashing of charges. Instead, the appropriate remedy for such a violation is a claim for compensation against those responsible for the violation. The court therefore dismissed the application for acquittal and quashing of charges, but affirmed the applicants' right to seek compensation for the violation of their constitutional rights. The criminal proceedings in the...
Court Disposition
application dismissed
Orders
- The application is dismissed.
- The applicants are at liberty to claim compensation from those who violated their rights.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Miscellaneous Criminal Application 8 of 2009
STEPHEN ATIBA OSORE ................................ 1ST APPLICANT
RAMATHAN MUKWALI MUSULA ....................2ND APPLICANT
V E R S U S
REPUBLIC...............................................................RESPONDENT
R U L I N G
In their application dated 30th December, 2008 the applicants seek orders that the violation of their fundamental Constitutional rights to liberty be determined. The application is brought under section 84 (1) 84 (2) (a) of the Constitution.
The 1st applicant contends that he was arrested on 16th June, 2008 and charged in court on 3rd July, 2008 at Butere, vide Criminal Case No. 438 of 2008.
The 2nd applicant, Ramathan Mukwali Musula was arrested on 21st December, 2007 and was charged in the Butere Court on 22nd January, 2008, vide Criminal Case No. 31 of 2008. The two cases were later consolidated to be Criminal Case No.1430 of 2008.
The applicants further contend that their Constitutional rights were violated as they were not to be arraigned before the court within fourteen (14) days from the date of arrest and that they should be released as the police contravened the law. They pray that this court “quashes the charge they are facing and declare them a nullity and they be set free forthwith.”
The State did not respond to the applicants’ contentions by way of replying affidavit. No explanation was given as to the correctness or otherwise of the applicants’ allegations. This being the case, I do find that indeed the applicants were not arraigned before court within 14 days as stipulated by the law. The applicant’s pre-trial Constitutional rights as enshrined in the Constitution were therefore violated.
Having found that the applicants’ Constitutional rights were violated, the next issue is whether the charge facing the applicants should be declared as a nullity and quashed resulting to the acquittal of the applicants. I do not find any provision in the Constitution which specifically states that a victim of violation of pre-trial rights should be acquitted of the charges facing him. Violation of the applicant’s rights does not automatically trigger acquittal. I am aware of the various decisions on this issue of violation of accused persons pre-trial rights but each case has to be determined on its own merit.
The 1st applicant was arrested on 16th May, 2008 and arraigned before the court on 3rd June, 2008. There is a public Holiday in June and the delay cannot be held to be unreasonable. The 2nd applicant was in custody for almost 30 days before he was charged in court.
The only relevant Constitutional provision on this matter is section 72 (6) which allows victims to claim compensation from those persons who violated their rights. I therefore do find that the applicants’ Constitutional rights to be arraigned before court within 14 days from the date of arrest were violated. The applicant is at liberty to claim compensation from the violators of those rights. The Lower Court Criminal Case No. 1430 of 2008 shall proceed for hearing. The application is hereby dismissed. It is so ordered.
Delivered, Dated and Signed at Kakamega this 23rd day of September, 2009
SAID J. CHITEMBWE
J U D G E