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Court of AppealPartially AllowedCriminal Appeal 35 of 2006· [2008] KECA 301 (KLR)

Paul Mwangi Murunga v Republic [2008] KECA 301 (KLR)

Court of Appeal of Kenya
22 February 2008
ROR.S.C. OmoloJOJ.W. Onyango OtienoGIGithinji
1,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal freed a man because police held him too long before charging him and his rape charge was defective.

What this practically means

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Executive summary

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The Court of Appeal at Nakuru allowed a second appeal by Paul Mwangi Murunga, who had been convicted by the Principal Magistrate at Naivasha on three counts of robbery with violence and one count of rape, with the rape sentence held in abeyance pending the death sentences. The High Court at Nakuru (Musinga and Kimaru, JJ) had dismissed his first appeal on 3 November 2005 in a judgment headed 'Judgment of the Court'. The Court of Appeal first observed that this heading was inappropriate: only a unanimous multi-judge appellate bench writes a single 'Judgment of the Court', and two High Court judges in a criminal appeal each write their own judgment, disagreement requiring a reheard before three judges under section 359(2) of the Criminal Procedure Code. On the merits, State counsel conceded the rape charge was incurably defective, and the Court agreed that rape cannot be committed jointly by several men at once; that conviction was quashed. On the robbery convictions, the Court found the appellant was arraigned some twenty-four days after arrest, ten days beyond the fourteen days permitted by section 72(3) of the Constitution for capital offences, with no explanation offered. It rejected the State's argument that the burden arises only upon a complaint by the accused, holding that the prosecution bears the burden of explaining delay and that courts must raise unexplained detention themselves. Following Ndede v Republic and Albanus Mwasia Mutua v Republic, the Court quashed all convictions, set aside the death sentence, and ordered the appellant's release unless held for some other lawful cause. The judgment was delivered pursuant to Rule 32(2) of the Court's Rules and was not signed by Githinji, JA.

Key legal issues

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01

Proper designation of a High Court judgment in a criminal appeal heard by two judges

Holding

A two-judge High Court judgment should not be headed 'Judgment of the Court'; each judge writes his or her own judgment, and if they disagree the appeal must be reheard before a bench of three judges.

Reasoning

The Court explained that 'Judgment of the Court' is a style used when all judges of an appellate court agree and write a single judgment. In criminal appeals heard by two High Court judges, each judge is entitled to write separately, and if the two disagree there would be no judgment at all, necessitating a reheard before a different bench of three judges under section 359(2) of the Criminal Procedure Code. The High Court judges below had copied the heading without appreciating its rationale.

p. 1
02

Defectiveness of the joint rape charge

Holding

The rape charge, framed as a joint act by three men, was incurably defective and the conviction could not stand; the appeal on that count was allowed and the sentence held in abeyance was set aside.

Reasoning

State counsel conceded the charge was incurably defective. The Court reasoned that rape is committed by each man individually and successively, not jointly; two or three men cannot at the same time 'jointly' penetrate a woman's genital organ, so each participant must face a separate count. The conviction based on the defective charge could not be sustained and the abeyance sentence fell with it.

p. 2
03

Violation of section 72(3) of the Constitution by delayed arraignment and allocation of the burden of explanation

Holding

Detention for some twenty-four days, ten days beyond the fourteen days permitted for capital offences, without explanation violated the appellant's rights; the burden of explaining the delay rests on the prosecution and the court must raise the issue even absent a complaint by the accused.

Reasoning

The charge sheet showed arrest on 18 March 2000 and first appearance on 3 April 2000, ten days beyond the permissible period. The Court rejected the State's submission that the accused must first complain, noting that such a rule would confine constitutional rights to those who can afford counsel. Following Ndede v Republic, the prosecution must explain the delay as part of the facts, and magistrates should ask for and record explanations even though they lack jurisdiction over constitutional questions. No explanation was offered on the record or by counsel.

p. 3
04

What may constitute an acceptable explanation for delay

Holding

Adopting the examples in Albanus Mwasia Mutua v Republic, illness requiring hospitalisation, arrest on a Friday evening, or distance and transport difficulties may amount to acceptable explanations; a short delay of one or two days may be countenanced, but a ten-day unexplained delay is inordinate.

Reasoning

The Court, following Mutua's case, illustrated circumstances that could excuse delay: hospital admission after arrest, weekend closure of courts preventing immediate production or release, or the distance between police station and court coupled with vehicle breakdown or lack of fuel. These are examples, not an exhaustive list; so long as the explanation proffered is reasonable no problem arises. Against this benchmark, ten days of unexplained custody was too long and the Court followed Mutua in allowing the appeal.

p. 3

Legal principles established

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  • A judgment of two judges of the High Court in a criminal appeal cannot be styled a 'Judgment of the Court'; that designation is reserved for a single unanimous judgment of a multi-member appellate court.
  • The burden of explaining delay in bringing an accused person to court under section 72(3) of the Constitution lies on the prosecution, and does not depend on a complaint by the accused; where no explanation is offered, the court itself must raise the issue.
  • Rape cannot be committed jointly by two or more persons at the same time; each participant must be charged on a separate count of rape.
  • An unexplained delay of about ten days beyond the constitutionally permitted period of custody before arraignment is inordinate and warrants quashing the convictions.

Court orders

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  1. 1.Appeal allowed as regards the charge of rape; conviction quashed and the sentence held in abeyance set aside
  2. 2.All convictions under section 296(2) of the Penal Code quashed
  3. 3.Sentence of death set aside
  4. 4.Appellant ordered to be released from prison forthwith unless held for some other lawful cause

Authorities

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Legislation

  • Constitution of Kenyasection 72
  • Constitution of Kenyasection 72(3)
  • Penal Codesection 296(2)
  • Penal Codesection 140 (now repealed)
  • Criminal Procedure Codesection 359(2)
  • Court of Appeal RulesRule 32(2)

Cases cited (3)

  • Anne Njogu & 5 Others v Republic
    HC Misc. Application No. 551 of 2007 (unreported)
  • Ndede v Republic
    [1991] KLR 567
  • Albanus Mwasia Mutua v Republic
    Criminal Appeal No. 120 of 2004 (unreported)
On appeal from
High Court of Kenya at Nakuru
H.C.CR.A. No. 126 of 2003
Jurisdiction invoked
Second appeal to the Court of Appeal under the Criminal Procedure Code, the Court dealing only with matters of law

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Paul Mwangi Murunga v Republic [2008] KECA 301 (KLR)", Case Analysis (2008). Criminal Appeal 35 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/301/eng@2008-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.