Of Kisii v Attorney General of Kenya)

He further deposed that when deceased’s father learnt of the impending decision to release the applicant and hold a public inquest, he went to Mr. Kemo’s office and protested the decision on grounds that there were eye witnesses that saw the applicant assaulting the deceased. On 17th March 2007, Mr. Kemo wrote again to the DCIO and directed him to withhold the release of the applicant and re-submit the file for his perusal and further directions. Upon perusal of the file he formed the opinion that there was prima facie evidence to warrant the prosecution of the applicant on a charge of murder. Mr. Kemo was of the view that the complaints raised by the deceased’s father were justified and he caused the file to be placed before the Provincial State Counsel, Mr. D. Musau, for his perusal and directions. Mr. Musau concurred with Mr. Kemo that the applicant should be charged with murder but in the event that he offered to plead guilty to manslaughter the offer should be accepted. The Principal State Counsel further deposed that the DCIO, Kisii, had only one secretary on whom he depends to have all statements typed before police files are compiled. That caused some delay which was compounded by the fact that the applicant had to be examined by a doctor to determine his mental status before the charge of murder was preferred against him. He further stated the police department through out the country is overwhelmed with work and that often causes delay in compilation of murder case files. The applicant filed a supplementary affidavit and stated that by the time his file was forwarded to the office of the Attorney General for advice, he had stayed in the police cells for more than fourteen days. He annexed to his affidavit, an abstract of the police investigation diary. He added that at one stage, the charge of murder was reduced to that of manslaughter in terms of a recommendation by the investigating officer but shortly thereafter, he was again charged with murder. In his view, the affidavit by Mr. Kemo did not sufficiently explain why there was such inordinate delay in arraigning him before a court of law. Mr. Ondari for the applicant made submissions in support of the applicant’s depositions. He cited the Court of Appeal decisions in GERALD MACHARIA GITHUKU VS REPUBLIC , Criminal appeal No.119 of 2004 and ALBANUS MWASIA MUTUA VS REPUBLIC, Criminal appeal No.120 of 2004. Both appeals related to violation of the appellants’ constitutional rights and more so, Section 72(3) which provides as hereunder: “72 (3) A person who is arrested or detained – (a) for the purpose of bringing him before a court in execution of the order of the court; Or (b) upon reasonable suspicion of having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon asis reasonably practicable, and where is not brought before a court within twenty-four hours of his arrest or from the commencement of his detention, or within fourteen days of his arrest or detention where he is arrested or detained upon reasonable suspicion of having committed or about to commit an offence punishable by death, the burden of proving that the person arrested or detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this sub-section have been complied with.” Mr. Ondari added that the respondent had not advanced any satisfactory explanation for the delay in arraigning the applicant before a court of law within the stipulated period of time. He urged the court to discharge the applicant. Mr. Kemo for the respondent reiterated the averments contained in his affidavit. He stated that there were certain circumstances which make it impossible to bring a suspect to court within fourteen days from the date of arrest. He added that there was no deliberate intention to abuse the applicant’s constitutional rights as stated.

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On the other hand, Mr. Kemo urged the court to consider the fact that the deceased’s constitutional right to life had been taken away by the applicant. As such, the applicant was not entitled to an automatic discharge upon proof of unwarranted delay in presenting him before a court of law. The applicant could sue for damages for breach of his constitutional right to personal liberty guaranteed by Section 72 of the Constitution. The question of striking an appropriate balance between two conflicting constitutional fundamental rights often arises. In ALBANUS MWASIA MUTUA VS REPUBLIC (supra), the appellant was convicted and sentenced to death on a charge of attempted robbery with violence contrary to section 297(2) of the Penal Code. It was established that he had been held by the police for nearly eight months before he was arraigned in court. The Court of Appeal stated as follows: “We must admit that the matter has caused us some considerable thought and anxiety. On the one hand is the duty of the courts to ensure that crime, where it is proved, is appropriately punished; this is for the protection of society; on the other hand it is equally the duty of courts to uphold the rights of persons charged with criminal offences, particularly the human rights guaranteed to them under the constitution.” After reviewing several cases all of which involved breach of appellants’ constitutional rights, the Court of Appeal had this to say: “The jurisprudence which emerges from the cases we have cited in the judgment appears to be that an unexplained violation of a constitutional right will normally result in an acquittal irrespective of the nature and strength of evidence which may may be adduced in support of the charge.” The court allowed the appeal, quashed the conviction and set aside the death sentence that had been imposed. My understanding of the above quoted passage from ALBANUS MWASIA MUTUA VS REPUBLIC is that where there is delay in arraigning an accused person before a court of law, the same must satisfactorily be explained, failing which the court will normally acquit the accused. I do not understand the court of Appeal to have laid down a general principle that where it is proved that an accused person is held by the police for any period exceeding that which is stipulated under Section 72(3) of the constitution, he should automatically be acquitted. My view is fortified by a later decision of the same court in ELIUD NJERU NYAGA VS REPUBLIC, Criminal appeal No182 of 2006 where the court delivered itself thus: “---- it would be unreasonable to hold that any delay must amount to a constitutional breach and must result in an automatic acquittal ----.In Mutua’s case the prosecution had had an opportunity to explain the cause of the delay but failed to offer an explanation. In the appeal before us the ground raising the violation of the constitutional right was raised only on the morning of the hearing when the court granted leave to (Counsel) to file the supplementary memorandum of appeal out of time. We are, accordingly, unable to hold that the prosecution had been given a reasonable opportunity to explain the delay but had failed to take advantage of the opportunity and, therefore, that there was no reasonable explanation for delay. Even Section 72(3) of the Constitution, which deals with the period of bringing an accused person to court recognizes that there can be a valid explanation for failure to bring an accused person to Court as soon as reasonably practicable. By filing their complaint about the delay only on the morning of the hearing the appellant clearly deprived the prosecution of an opportunity to offer an explanation, if any”. The applicant herein has urged this court to terminate the murder charges which he is facing and has advanced the reasons therefor. The state is opposed to that move. In DAVID KAROBIA KIIRU VS REPUBLIC, High Court Miscellaneous Criminal Application number 863 of 2007 Ojwang J. posed the question:

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“When, in law, should the High Court put an end to the Constitutional function of trying criminal cases, as a state function authorized by law (S.26 of the constitution) of Kenya?” The learned judge went on to answer the self-posed question as hereunder: “It is clear that such a claim, when rested upon the constitutional document itself, must be thought through carefully: because criminal prosecution is a public interest, governance process, itself founded on the constitutional document. So, if that process is, as herein the case, being challenged by citing the same constitution, then conflicts within the provisions of the constitution become apparent: and in that case, it is within the jurisdiction of the High Court to interpret the constitution, and to declare what its true meaning is. I hold, therefore, that the reading of a line, or a clause, or a section of the constitution [by itself] will not be the answer, when such competing claims emerge: it is for this court to declare the law of constitution, in those circumstances.” In considering the application before me, it is imperative that I also address myself to the provisions of section 71(1) of the constitution. It provides as follows: “71. (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Kenya of which he has been convicted.” The applicant herein is charged with murder. It is alleged that he murdered Herbert Mobisa Nyakina on 16th February, 2005. At this stage, can it be said with any finality that the applicant murdered the deceased? The answer is obviously in the negative. Only two witnesses have so far testified in the murder case. After being kept in unlawful police custody for nearly fifty days, the applicant was charged with murder. While the murder charge was still pending before the High Court, the applicant offered to plead guilty to manslaughter and a charge of manslaughter was preferred against him. He was taken before a magistrate but when the charge was read out to him, he denied the same. The court released the applicant on a bond of Kshs.100,000/= and one surety of a similar amount pending trial. While his family was making arrangements to comply with the terms of the bond and secure the applicant’s release from prison remand, the state withdrew the charge of manslaughter and decided to charge the applicant with murder. Our law presumes an accused person to be innocent until proven guilty. It cannot therefore be said that the applicant deprived the deceased of his life. The court is yet to establish what actually caused the death of the deceased. What is manifestly clear is that for nearly 50 days, the applicant was being held by the police unlawfully. From the explanation that has been offered by the respondent through Mr. Kemo, I am not satisfied that there was any good reason for such inordinate delay. It appears to me that there was no agreement between the police and the Attorney-General’s office as to what charge the applicant was going to face. Some police officers and some state counsels wanted him charged with murder while others were for manslaughter and yet others did not want the applicant to stand trial at all, they preferred a public inquest into the cause of the deceased’s death. Whichever way one looks at it, it was wrong for the police and the office of the Attorney General to unlawfully keep the applicant away from court as they continued to exchange correspondence. In MOHAMED VS ATTORNEY GENERAL & 3 OTHERS [2003] KLR 338, Etyang J; considering a similar matter as this one stated at pages 341 and 342: “[The applicant] ought to have been informed of the reasons for her arrest in a language that she understands. If she was arrested upon reasonable suspicion of her having committed or being about to commit a criminal offence punishable by a term of imprisonment or fine, then she ought to

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have been taken to court within 24 hours, or an apprehension report ought to have been filed with the court and the police officers concerned could even have gone to a court to seek authority to keep her in police custody a little longer. This was not done.” In FAN XI & OTHERS VS THE ATTORNEY GENERAL MISC. CRIMINAL APPLICATION NO.860 of 2007, Ojwang J, in a well considered ruling, set out the conditions that must be met by an explanation offered in terms of Section 72(3) (b) of the constitution. They are as follows: (i) The explanation must carry elements of objective reasoning. (ii) The explanation must make sense, in the light of the special circumstances of the case. (iii) the explanation must be made bona fide, and not merely as a technicality in aid of the prosecution case. (iv) The explanation should show such operational difficulty as may have prevented timeous arraignment of the suspect in court. (v) The explanation should show clearly that the arresting authority did exercise genuine professional care in conducting the investigations preceding the arrest. Looking at the explanation given by the respondent in this case, it is a far cry from the ideal explanation as set out hereinabove. The D.C.I.O. Kisii was forwarding the duplicate murder file for advice by the Senior State Counsel, Kisii on 8th March, 2005, having kept the applicant in custody since 17 th February, 2005. What followed thereafter was like an act in a game of charades, seemingly, between two different teams. I am satisfied that there was blatant transgression of the applicant’s guaranteed constitutional rights. No credible explanation for failure by the police to arraign the applicant before a court of law within the required time was offered. In the circumstances of this case, the applicant’s trial is a travesty of justice which cannot be countenanced by a court of law. Consequently, I quash the criminal charge of murder that has been brought against the applicant and order that he be set at liberty forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED at KISII this 16th of April 2008. D. MUSINGA JUDGE. Delivered in open court in the presence of: Mr. Ondari for the Applicant Mr. Kemo for the State. D. MUSINGA JUDGE.

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