[2009] KEHC 3498 (KLR)
The court found that the applicants were held in police custody for 28 days before being arraigned in court, far exceeding the constitutionally mandated period of 24 hours for bailable offences such as manslaughter. No explanation was provided by the police or prosecution for this delay. Citing binding Court of...
Source-derived case information.
- Citation
- [2009] KEHC 3498 (KLR)
- Parties
- Applicant: Tony Abiero Owino; Applicant: George Ouma Otieno alias Mbori; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 23 of 2009
- Procedural Posture
- Constitutional Reference / Ruling on Constitutional Reference Before Trial
- Outcome
- application allowed; applicants acquitted; set at liberty unless otherwise lawfully held
- Judges
- DK Musinga
- Legal Topics
- Right to Be Brought to Court Within Time, Pre Trial Detention, Violation of Fundamental Rights, Manslaughter Charge, Unexplained Delay in Arraignment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tony Abiero Owino
Applicant
George Ouma Otieno alias Mbori
Applicant
Republic
Respondent
Procedural Posture
Constitutional Reference / Ruling on Constitutional Reference Before Trial
Legal Issues
- 1 Whether the applicants' constitutional right under Section 72(3)(b) of the Constitution was violated by being held in police custody for 28 days before arraignment.
- 2 Whether the unexplained delay in arraignment renders the manslaughter charge a nullity.
Ratio Decidendi
The court found that the applicants were held in police custody for 28 days before being arraigned in court, far exceeding the constitutionally mandated period of 24 hours for bailable offences such as manslaughter. No explanation was provided by the police or prosecution for this delay. Citing binding Court of Appeal authority, the court held that such unexplained violation of the right to be brought before a court within the stipulated time renders the charge a nullity, regardless of the strength of the prosecution's evidence. Consequently, the applicants' constitutional rights were abrogated, and the manslaughter charge could not stand.
Court Disposition
application allowed; applicants acquitted; set at liberty unless otherwise lawfully held
Orders
- The application is allowed.
- The applicants are acquitted of the manslaughter charge.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
ATKISII
Constitutional Reference 23 of 2009
TONY ABIERO OWINO )
GEORGE OUMA OTIENO alias MBORI ) ………………….…. APPLICANTS
VERSUS
REPUBLIC ………………………………..…………………….. RESPONDENT
RULING:
The applicants were charged with manslaughter contrary to Section 202 as read with Section 205 of the Penal Code. The particulars of the offence were that on the 11th day of December 2007 at Kanguka market, Migori District Nyanza Province, jointly with others not before court they unlawfully killed Bernard Ochola Nyakwaka, hereinafter referred to as “the deceased”. Prior to the commencement of the aforesaid case before the Principal Magistrate’s court at Migori, the applicants filed a Constitutional reference before this court challenging the validity of the said charge. In their petition which was supported by affidavits sworn by each one of them, the applicants deposed that they were arrested on 12th of December 2007 and kept in police custody incommunicado until 8th of January 2008 when they were arraigned in court for plea. They were therefore in police custody for 28 days. They stated that their constitutional right as enshrined in Section 72 (3) (b) of the Constitution had been violated. For the alleged offence of manslaughter, which is a bailable one, the applicants ought to have been arraigned in court within 24 hours from the date of their arrest. Alternatively, if they were to be charged with murder, they ought to have been taken to court within 14 days from the date of the arrest. They urged the court to find that the charge that had been preferred against them was annulity in law.
Mr. Owade for the applicants cited several Court of Appeal decisions to buttress the above arguments. In ALBANUS MWASIA MUTUA –VS- REPUBLIC, Criminal Appeal No. 120 of 2004, the Court of Appeal held that unexplained delay in arraigning an accused person in court amounts to violation of his constitutional right under Section 72 (3) (b) of the Constitution. Such unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence which may be adduced in support of the charge, the court stated.
Dealing with a similar application in ELISHA OTIENO ODERO –VS- REPUBLIC, [2008] eKLR, the Court of Appeal emphasized the importance of adhering to important constitutional provisions. The court delivered itself thus:
“As this court as said time and again, the prosecution must learn to operate within the laws upon which our fledging democracy is based. We are all, the police, the Attorney General and the courts bound to accept that we are governed by law and the concept of the rule of law must be given a practical reality”.
The police did not give any explanation at all as to why the applicants were not arraigned in court within the period as stipulated in the Constitution. In the absence of any explanation, I find and hereby hold that the applicants’ constitutional right as aforesaid was abrogated and the charge of manslaughter that was preferred against them cannot therefore stand. In the circumstances this application is allowed and the applicants are acquitted of the charge that had been preferred against them. They are ordered set at liberty unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT KISII THIS 26TH DAY OF MAY, 2009.
D. MUSINGA
JUDGE.
26/5/2009
Before D. Musinga, J.
Mobisa – cc
Mr. Owade for the applicant
Mr. Kemo for the state
Court: Ruling delivered in open court on 26/5/2009.
D. MUSINGA
JUDGE.