[2023] KEHC 26361 (KLR)

Veld v Republic (Miscellaneous Criminal Application 51 of 2023) [2023] KEHC 26361 (KLR) (6 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26361 (KLR)

Republic of Kenya

In the High Court at Kibera

Miscellaneous Criminal Application 51 of 2023

DR Kavedza, J

December 6, 2023

Between

Jan In’T Veld

Applicant

and

Republic

Respondent

Ruling

1. On 27th November 2023, the applicant was presented before the Chief Magistrate's Court sitting at JKIA for the hearing of a motion on 27th November 2023 by the respondent in JKIA Miscellaneous Criminal Application no. E091 of 2023 Republic vs Jan In’t Vel. In that motion, the respondent sought that the applicant be remanded in police custody for 20 days to enable the DCI, to complete investigations. By a ruling made on the same day, the lower Court allowed the application and ordered that the applicant be held until 18th December 2023.

2. Aggrieved by that decision, vide a notice of motion dated 30th November 2023, the applicant moved this court under the provisions of article 43 (1) (a) and 49 (1) (h) of the Constitution of Kenya and sections 123, 124, 362 and 364, of the Criminal Procedure Rules praying for the revision of that order. He prayed to be released on reasonable bail terms pending charge/trial. The application was supported by an affidavit sworn by the applicant of a similar date.

3. He contended that the ruling was a grave violation of the Constitution in ordering his detention for 20 days without being informed of the charge that he is likely to face; since his arrest, he has been corperating with the police; he was previously arrested on 17th November 2023 and released after interrogation and released; he is 72 years old and suffers from high blood pressure and needs medical attention; he is not a flight risk as all are documents were confiscated by the investigating officer and are yet to be returned; he prayed to be released on reasonable bail terms.

4. I have considered the application, the affidavit in support, and the applicable law. For consideration is whether the court should grant the orders sought.

5. In this case, the applicant contests the trial court's order detaining him for 20 days. Article 49 (1) (g) provides that an arrested person has the right at the first court appearance, to be charged or informed of the reason for the detention continuing, or to be released.

6. I have considered the said article of the Constitution of Kenya and the rights enumerated thereunder. The trial Court in exercise of its discretion seems to have equally considered the provisions of the same article in the ruling. It is trite law that this Court cannot substitute its discretion for that of the trial Court just because it could have arrived at a different decision. It is incumbent upon the applicant to show how the trial Court acted irregularly in making the impugned order. The parameters within which this Court’s powers are to be exercised under section 362 are well spelt out.

7. A cursory glance of the averments reveals that the affidavit presented before court by the Investigating Officer allegedly contained child pornographic material. Secondly, another reason that necessitated his detention is that he is a Dutch national hence a flight risk. The offence was allegedly committed within a vast area covering Nairobi, Eldoret and Kisumu regions. In undertaking investigations, the applicant’s electronic gadgets have been confiscated for forensic analysis. Since his arrest, has not been formally charged with any offence. He is only a suspect.

8. Article 49 (1) (g) provides for pre-charge detention provided that the suspect is informed of the reasons for the continued detention. This was enumerated in the case of Betty Jemutai Kimeiywa v Republic [2018] eKLR. In this case the applicant was informed of the reasons for the pre-charge detention. I find the decision in the Betty Jemutai’s case to be persuasive. It is a requirement under article 29 of the Constitution that one should not lose his liberty without a reasonable and justifiable cause. The duty of the court is to satisfy itself that there are reasonable grounds upon which the prosecution requires to hold a suspect, but, for a reasonable period.

9. However, in detaining the applicant, the court must strike a balance between the constitutional rights of an arrested person entrenched in article 49, the rights of the victims and public interest. The text of article 49 (1) (g) may, in certain circumstances and contexts, such as investigations of transnational organised crimes, comprehend a situation where a person is presented before a Court without being formally charged, provided that he is informed of the reasons for his continued detention. The rider however is that the State must satisfy a double test.

10. The first consideration is that the state must demonstrate good faith and must have reasonable grounds to believe that the continued detention of the individual without a charge being preferred whether provisional or otherwise is inevitable due to existing exceptional circumstances. Secondly, that the continued detention of the individual without charge is the least restrictive action it can take in balancing the quadruple interests present in a potential criminal trial: the rights of the arrested individual; the public interest, order and security; the needs to preserve the integrity of the administration of justice; and the interests of victims of crime where appropriate. (See: Sudi Oscar Kipchumba vs Republic (Through National Cohesion & Integration Commission) [2020] eKLR)

11. From the jurisprudence above, the trial magistrate was within the law in granting the detention orders. However, the limitation of the applicant’s liberty for twenty (20) days without a formal charge cannot be said to be proportionate to the harm done. Ngugi J (as he then was) in Sudi Oscar Kipchumba vs Republic (Through National Cohesion & Integration Commission) [2020] eKLR) discussed the importance of a holding charge and held as follows:“The Court in Michael Rotich Case, while decrying the ubiquitous use of pre-charge detention ruled that the constitutional meaning of “to be informed of the reason for the detention continuing” can only be met with the presentation of a holding charge at the very minimum. There are good reasons for this purposeful reading of the Constitution. Why should the Police arrest a citizen if they do not even have a provisional view of the offence the citizen has committed? It would seem repugnant to the ethos of constitutional justification of the exercise of power and authority in which our Constitution is steeped in to encourage such practice even if not categorically unconstitutional textually. In many cases, such Police action would be, in context and effect, unconstitutional. This would be the case where the Police conduct reveals a pattern or desire to overreach or to deploy the Criminal Justice System in a manner which unnecessarily diminishes rather than aggrandizes personal liberty or autonomy of the Arrested individual.’’

12. The upshot of the above analysis is that the order detaining the applicant for 20 days issued on 27th November 2023, is set aside and substituted with an order that:i.The applicant be produced before the Chief Magistrates Court at JKIA on 8th December 2023 to answer to a formal charge or a holding charge.ii.Once arraigned, the applicant is at liberty to make a formal application for bail/bond before that court.iii.This order shall be served upon the Officer Commanding Station JKIA, Eldoret, and Kisumu Central Police Stations where the applicant is/was held before the end of business today.Orders accordingly.

Ruling dated and delivered virtually this 6th day of December, 2023. ........................D. KAVEDZAJUDGE