Republic through DCI v Mackenzie & 30 others (Miscellaneous Criminal Application E077, E101 & E130 of 2023 (Consolidated)) [2023] KEMC 292 (KLR)
The bottom line
#Kenya's Shanzu court extended Shakahola suspects' detention by 47 days, ruling no holding charge is needed to keep suspects in custody.
What this practically means
#Executive summary
#Key legal issues
#Requirement of a holding charge for pre-charge detention
The court respectfully disagreed with Michael Rotich v Republic and held that there is no requirement for a holding charge; the Constitution permits detention pending charge where compelling reasons exist under Article 49(1)(h).
The court considered Michael Rotich v Republic which required a holding charge, but noted that several more recent High Court authorities departed from it. Applying the principle that where two decisions cannot be reconciled the more recent and more consistent with general principles prevails, and noting Samuel Cheruiyot Arap Langat v Republic also rejected the concept, the court held that once a suspect appears in court, the options are to charge, release, or continue detention with reasons given, with no legal requirement of a holding charge.
Whether extension of pre-charge detention beyond the period initially sought is permissible
Such an extension is permissible only in the rarest of rare cases; this case qualified owing to the unprecedented magnitude and complexity of the Shakahola investigations.
Drawing an analogy from the Indian doctrine of the rarest of rare case, and from Jaswinder Singh v State of Haryana where extensions in narcotics cases were reserved for rarest of rare cases, the court held that once the State exhausts the period initially sought, any further extension must be exceptional. The exhumation of 425 bodies, incomplete DNA analysis, incomplete identification parades, traumatized and radicalized witnesses and the international dimension of the matter established the requisite exceptionality.
Whether the respondents should be released on bond or conditional bond terms
Release was refused because compelling reasons existed: risk of witness interference, flight risk, unidentified bodies and missing relatives yet to be accounted for, and incomplete identification parades.
The court noted the unrebutted affidavit evidence that most respondents resided at Shakahola with relatives now missing, that they had not accounted for them, that identification parades and DNA matching were incomplete, and that release itself could traumatize radicalized witnesses. Applying the bond principles it had recapitulated and the balance of probabilities standard, the court found detention was the least restrictive measure balancing public interest and the rights of the respondents.
Ninety-day ceiling on pre-charge remand under section 36A(10) of the Criminal Procedure Code
For offences outside the Prevention of Terrorism Act, remand pending charge cannot exceed ninety days, so the State was time-barred for the E077 respondents except in respect of POTA offences.
The court held that at the expiry of ninety days the State must release the suspect unconditionally, release on bond, or charge, with no room for extension except for offences under the Prevention of Terrorism Act. Since the offences under investigation were principally under the Penal Code but all revolved around radicalization, an offence under the POTA, the State had to demonstrate that the respondents were being investigated for POTA offences to justify continued detention.
Social inquiry reports and investigators' access to prisons
The court directed social inquiry reports within 30 days and granted investigators access to the prisons for interviews and recorded statements.
The court found that a background check was necessary before any release, to establish whether the respondents would be accepted and accommodated at their homes, especially given they had been convicted by the court of public opinion. The respondents did not object to the investigators' access prayer, and it was granted.
Legal principles established
#- There is no constitutional or statutory requirement for a holding charge before a court may order continued pre-charge detention where compelling reasons exist under Article 49(1)(h)
- Where trial judges of the same court are divided, the more recent decision which considered the conflicting decisions should be preferred
- A further extension of pre-charge detention after the State has exhausted the period initially prayed for should be granted only in the rarest of rare cases
- Detention pending charge must always be an exceptional measure of last resort and the standard of proof for compelling reasons is on a balance of probabilities
Court orders
#- 1.The 1st to 17th respondents in Misc. Criminal Application No. E077 of 2023, all the respondents in Misc. Criminal Application No. E101 of 2023 with the exception of the 7th respondent who is deceased, and the respondent in Misc. Criminal Application No. E130 of 2023 shall be remanded in custody for a further period not exceeding 47 days from 2/8/2023
- 2.The National Secretary of Probation and Aftercare Services directed to conduct and submit to court within 30 days social inquiry reports on each of the respondents (excluding the deceased 7th respondent in E101 of 2023)
- 3.The officers in charge of Shimo La Tewa, Kilifi and Malindi GK Prises ordered to grant the investigators access to conduct further interviews and record statements
- 4.The prayer for additional Advocates from the National Legal Aid Service declined
- 5.The earlier orders on the treatment of the respondents while in custody still subsist
- 6.The ruling applies to Misc. Criminal Application No. E077 of 2023, Misc. Criminal Application No. E101 of 2023 and Misc. Criminal Application No. E130 of 2023
- Jurisdiction invoked
- Articles 49(1)(g) and (h), 51, 159(2)(d) of the Constitution; sections 33(4)(c), 33(5), 33(8), 33(9), 33(10), 34, 35, 40B and 40C of the Prevention of Terrorism Act; section 36A of the Criminal Procedure Code
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic through DCI v Mackenzie & 30 others (Miscellaneous Criminal Application E077, E101 & E130 of 2023 (Consolidated)) [2023] KEMC 292 (KLR)", Case Analysis (2023). Miscellaneous Criminal Application No. E077 of 2023 (consolidated with Misc. Criminal Application No. E101 of 2023 and Misc. Criminal Application No. E130 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2023/292/eng@2023-08-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.