[2009] KEHC 3762 (KLR)
The court found that the police failed to provide a sufficient explanation for the delay in arraigning the applicant after the last witness statement was recorded and for not presenting him in court on the next available working day. The investigating officer did not justify why the applicant was not released on...
Source-derived case information.
- Citation
- [2009] KEHC 3762 (KLR)
- Parties
- Applicant: William Ondieki Nyakundi; Respondent: State
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Constitutional Reference 27 of 2008
- Procedural Posture
- Constitutional Reference / Ruling on Constitutional Violation Before Trial
- Outcome
- application allowed; applicant acquitted; applicant set at liberty
- Legal Topics
- Pre Trial Detention, Arraignment Delay, Right to Be Brought to Court, Unlawful Custody, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Ondieki Nyakundi
Applicant
State
Respondent
Procedural Posture
Constitutional Reference / Ruling on Constitutional Violation Before Trial
Legal Issues
- 1 Whether the applicant's constitutional right to be brought before a court within 24 hours of arrest was violated.
- 2 Whether the explanation provided by the police for the delay in arraignment was sufficient.
- 3 Whether the charges against the applicant should be quashed due to the constitutional violation.
Ratio Decidendi
The court found that the police failed to provide a sufficient explanation for the delay in arraigning the applicant after the last witness statement was recorded and for not presenting him in court on the next available working day. The investigating officer did not justify why the applicant was not released on bond or why he was not brought before the court at Keroka, where he was held. The unexplained delay constituted an unmitigated violation of the applicant's constitutional right to be brought before a court within 24 hours of arrest. As a result, the court held that the charges against the applicant could not stand and acquitted him, setting him at liberty unless otherwise lawfully...
Court Disposition
application allowed; applicant acquitted; applicant set at liberty
Orders
- The application is allowed.
- The applicant is acquitted of all charges.
Full Case Text
Judgment text and source record
21 paragraphs
WILLIAM ONDIEKI NYAKUNDI ………….....…………………. APPLICANT
VERSUS
STATE ………………………………………………………… RESPONDENT
RULING:
The applicant was charged with burglary contrary to Section 304 (2) and stealing contrary to Section 279 (b)of the Penal code.
It was alleged that on the 8th day of March, 2008 at Matutu Sub-location, Masaba District, the appellant broke and entered a dwelling house belonging to Lilian Chebet Mogaka with intent to steal therein and did steal one radio valued at Kshs. 800/= the property of the said Lilian Chebet Mogaka.
The charge sheet showed applicant was arrested on 16th March, 2008 and arraigned in court on 18th March, 2008. Before the trial commenced, the applicant alleged that his constitutional right had been violated in that he was held in police custody for longer than 24 hours before he was taken to court. The trial court then referred the matter to this court for determination.
Sergeant Monika Kimani,the Investigating officerfiled an affidavit and stated that the applicant was arrested on 13th March, 2008 by Administration police officers and handed over to Keroka Police Station for Investigations. He was placed in cells at 3. 20 p.m. On 14th March, 2008 the last witness recorded her statement. The Investigating officer explained that the delay in having the accused arraigned in court was due to the fact that it took time to trace the witnesses who are residents of Matutu about 30 kilometres from Keroka police station. She added that 15th and 16th March, 2008 was a weekend. But she did not explain why the applicant was not arraigned in court on 17th March, 2008.
Having considered the above explanation, I find that the police did not sufficiently explain why they did not arraign the applicant in court immediately after the last witness recorded her statement. The Investigating Officer did not explain why the applicant could not be released on bond. She did not also explain why the applicant was not arraigned in court on Monday the 17th day of March, 2008. The applicant was held at Keroka police station and there is a court at Keroka.
I am satisfied that the delay in arraigning the applicant in court amounted to unmitigated violation of his constitutional right. Consequently, the charge against the applicant cannot stand. I allow the application and acquit the applicant of the charges that had been preferred against him. The applicant is set at liberty unless otherwise lawfully held.
DATED, SIGNED AND DELIVERED AT KISII THIS 30TH DAY OF MARCH, 2009.
D. MUSINGA
JUDGE.
30/3/2009
Before D. Musinga, J.
Court: Ruling delivered in open court in the presence of:
Mobisa - cc
Mr. Kemo for state
N/A for Applicant.
D. MUSINGA
JUDGE.