John Okoth Oluoch v Director of Public Prosecutions & 4 others

ordinary court hours. He contends that no exceptional circumstances existed to justify his detention beyond the prescribed constitutional period. 3. The petitioner further avers that he was eventually arraigned before a subordinate court on 22nd January 2026 and charged in Criminal Case No. 77 of 2026, after the alleged constitutional violations had already occurred. He was admitted to cash bail in the sum of Kshs. 40,000. It is his case that the arrest, prolonged detention and subsequent prosecution were unlawful, arbitrary and unconstitutional, and violated his rights to liberty, human dignity, fair trial and due process under Articles 28, 29, 49 and 50 of the Constitution. 4. The petitioner asserts that the constitutional violations preceding his arraignment irredeemably tainted the ensuing criminal proceedings, rendering them unconstitutional and an abuse of the criminal justice process. He therefore seeks declarations that his arrest and detention violated the Constitution, that his fundamental rights and freedoms were infringed, an prohibiting the continuation of the proceedings in Criminal Case No. 77 of 2026 and general damages for unlawful arrest, detention and violation of his constitutional rights. 5. In response, the 1st respondent filed grounds of opposition dated 9th March 2026. The grounds advanced are that no evidence has been advanced to demonstrate that the 1st respondent is in breach of the petitioner’s fundamental rights and freedoms. Secondly, that the Petitioner has not sought any reliefs that may be granted by the court against the 1st respondent. Further, that the petition is without merit as it fails to raise serious questions of law for determination. 6. The petition was canvassed by way of written submissions, which have been duly considered and there is no need to rehash them. The issues for determination are whether the petitioner's constitutional rights were violated by his arrest and detention; whether such violation vitiates the ensuing criminal proceedings; and whether the petitioner is entitled to the reliefs sought. 7. The right to personal liberty is among the most fundamental rights guaranteed under the Constitution. In Republic v Danson Mgunya & Another [2010] eKLR, the Court aptly observed that: “ Liberty is precious and no one's liberty should be denied without lawful reasons and in accordance with the law. Liberty should not be taken for granted." 8. Article 49(1)(f) of the Constitution provides that an arrested person has the right: “ to be brought before a court as soon as reasonably possible, but not later than (i) twenty-four hours after being arrested; or (ii) if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day." 9. The provision is couched in mandatory terms. Once the prescribed period has lapsed, the burden shifts to the State to demonstrate that the delay was reasonable and constitutionally justifiable. 10. The record of the subordinate court shows that the petitioner was arrested on Sunday, 18th January 2026, and first presented before the trial court on Wednesday, 21st January 2026. Even allowing for the fact that the arrest occurred on a Sunday, the petitioner ought to have been presented before court by the next court day following the expiry of the twenty-four-hour period. At the earliest opportunity, counsel for the petitioner objected to the delayed arraignment and expressly raised the violation of the petitioner's constitutional rights. Significantly, when invited by the trial court to explain the delay, the prosecution, acting on behalf of the Director of Public Prosecutions, stated that it was unable to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11881/eng@2026-07-29 2

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respond to the allegation. No explanation was subsequently offered before the trial court or before this Court. 11. Under Article 157(6)(a) of the Constitution: “ The Director of Public Prosecutions shall exercise State powers of prosecution and may (a) institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed." 12. As the constitutional office responsible for conducting criminal prosecutions, the Director of Public Prosecutions was under a duty to account for the petitioner's detention once the issue was raised before the trial court. Having failed to offer any explanation despite being afforded an opportunity to do so, the Director of Public Prosecutions is properly joined to these proceedings. 13. The respondents have placed no material before this Court demonstrating that investigations could not reasonably have been completed within the constitutional period or that exceptional circumstances justified the continued detention. Their silence is fatal. I therefore find that the petitioner's detention beyond the period prescribed under Article 49(1)(f) violated his constitutional rights. 14. The remaining question is whether that violation renders the criminal proceedings unconstitutional. The law on this issue is settled. In Julius Kamau Mbugua v Republic [2010] eKLR, the Court of Appeal held: “ ……the breach of right to personal liberty is not trial-related. It is a right to which every citizen is entitled. It is the function of the Government to ensure that citizens enjoy the right. The duty is specifically on the police where the suspect is in police custody. If, by illustration, police breach the right to personal liberty of a suspect by unreasonable detention in police custody there is a right to apply to the High Court for a writ of Habeas Corpus to secure release (see Section 389 (1)(a) of Criminal Procedure Code and Section 84 (1) of the Constitution). …… the person having already been unlawfully arrested or detained such unlawful arrest or detention cannot be undone and hence the breach can only be vindicated by damages.." 15. The Court reiterated that position in David Njuguna Wairimu v Republic [2010] eKLR, holding that the appropriate remedy for an unexplained violation of the constitutional timelines is compensation unless the violation is shown to have prejudiced the fairness of the trial or amounted to an abuse of the criminal process. 16. In the present case, although the respondents failed to justify the petitioner's continued detention, no evidence has been placed before this Court to demonstrate that the ensuing prosecution is malicious, oppressive or otherwise an abuse of the court process. Consequently, I decline the prayer seeking to prohibit the continuation of Criminal Case No. 77 of 2026. However, the petitioner's constitutional right under Article 49(1)(f) was plainly violated and must be vindicated. 17. Pursuant to Article 23(3)(e) of the Constitution, this Court awards the petitioner general damages of Kshs.100,000, together with interest at court rates from the date of this judgment until payment in full. 18. Accordingly, judgment is entered for the petitioner against the respondents jointly and severally as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11881/eng@2026-07-29 3

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I. A declaration is hereby issued that the petitioner's rights under Article 49(1)(f) of the Constitution were violated by his detention beyond the constitutionally prescribed period before being presented to court. II. The prayer seeking to prohibit or terminate Criminal Case No. 77 of 2026 is declined. III. The petitioner is awarded general damages of Kshs.100,000, together with interest at court rates from the date of this judgment until payment in full. IV. The petitioner shall have the costs of the petition. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026 ________________ D. KAVEDZA JUDGE In the presence of: Ms. Okongo h/b for Mr. Wambilianga for the Petitioner Ms. Ntabo h/b for Mr. Achoki for the 1st Respondent Karimi Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11881/eng@2026-07-29 4

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