The Appellant had been
convicted of murdering his wife, one Milcah Wanjiru in 19th
September 2005. Trial was to start in May 2006 but for various reasons began in
October 2006, prosecution closed its case on January 2008, when trial started
the aid of assessors was allowed but during its continuance the Criminal
Procedure Code was amended repealing the aid of assessors, trial nevertheless
continued with the aid. When trial was just about to conclude the Appellant
filed a constitutional application which stated in brief that there was a
violation of his freedom from inhumane treatment, freedom of movement and
personal liberty because the police had kept him in custody for 107 days in a
police station without toilet facilities. This petition sought to make the
trial a nullity because it had violated the constitutional rights of the
Appellant, it was dismissed as it had been raised to late in the trial thus
didn’t accord the prosecution enough time to rebut the same.
Present Appeal:
Appellant cited a breach of his constitutionally enshrined rights of personal
liberty[1],
right of an arrested person to be produced in court as soon as is reasonably
practicable[2],
if not tried within reasonable time be released unconditionally or upon
reasonable conditions[3]and
right of compensation to anyone who is detained unlawfully[4].
The main complaint was a violation of the right to Personal Liberty because of
the unlawful detention under deplorable
conditions[5].
Appellant relied on various domestic case law that favored the view that an
unexplained violation of constitutional rights that results from being produced
in court either in 24 hours after arrest or as soon as is reasonably
practicable should immediately order an acquittal even if it is satisfied that
there is strong evidence that the accused committed the crime and breach did
not result in substantial prejudice to him[6].
The Court went on to state that this liberal view has drastically changed where
the appellate court held that they will not accept the ground of violation of
rights because if it was not raised in the trial court then they do not have a
chance to test its falsity or truth[7],Appellant
is to be held to have waived his right if he did not raise it in the trial
court[8].
The High Court favored the 1st view but the Slippery slope started
with judge Anyara’s dissenting view[9],
he said that violation of an arrested persons rights does not entail an
acquittal but rather compensation. The Courts will not go against the law nor
public policy, thus a rapacious
rapist won’t be released just because he wasn’t produced in 24 hours to Court.
Courts will balance accused claim against public policy.
According to
international jurisprudence[10]
the rights of an arrested person in this field are 3, right to fair trial,
within reasonable time and by an impartial tribunal, this rights although
related are distinct and must be considered separately[11]thus
if one is convicted after a fair hearing this is no answer to a complaint of
reasonable time. These three rights are also not absolute and must be balanced
against public policy in the attainment of justice[12],
factors to be considered include length of delay, prosecution’s justification
for the delay, prejudice to the accused,waiver of time periods[13].
Of worthy mention is Judge McLachlin[14]
view where he said that when those accused of crimes are not called to account
justice when delays are occasioned this is of consequence not only to the
accused but also affects public interest in the administration of justice.
Accused may not suffer from delays above the expected limit and may also suffer
drastically if the delay occasions prejudice to him. Where Accused suffers no
prejudice from delay society’s interests outweigh the Accused’s and vice versa. The standard of proof for
proving a breach of the reasonable time requirement is a high one[15].
Appropriate
Remedy: It used to be an automatic
acquittal for any violation of the three rights of an arrested person viz.,
production in Court[16].
However that was a draconian position as we now must consider that he accused
has been charged with a serious crime thus the appropriate remedy is not a stay
of proceedings but monetary compensation. The right is to trial without undue delay,
it is not a right not to be tried after undue delay. Stay will only be appropriate
where delay has prejudiced Accused e.g. his witnesses have died. Personal
liberty is not trial related[17]
but right to fair hearing is, therefore an acquittal would be disproportionate
as it would compromise public security. It was also held that the criminal
court was not the appropriate forum for constitutional petitions. Appeal was
accordingly dismissed in its entirety- Appellate Judges E.M Githinji, Alnashir
Visram and P.N Waki. I accept this ruling and see it as very extensive in
nature and couldn’t have grasped the legal aspects any better
[1] Art.
72(1) 1963 Constitution of Kenya
[2] Art
72(3) Ibid
[3]
Art 72(5) Ibid
[4]
Art 72(6)
[5] In
a police station without toilet facilities for 107 days
[6] Albanus Mutua v The Republic(unreported)
Criminal Appeal No. 120 of 2004 ; Ndede v
Republic (1991)KLR 567 ; Gerald
Macharia Githuku v Republic(unreported) Criminal Appeal No. 119 of 2004; Paul Mwangi Murunga v Republic (unreported), Criminal Appeal
No. 35 of 2006.
[7] Samuel Ndungu Kamau & Another v Republic,
Criminal Appeal No. 223 of 2006
[8] Dominic Mutie Mwalimu v Republic (unreported),
Criminal Appeal No. 217 of 2005
[9] Republic v David Geoffrey Gitonga (unreported),
Criminal Case No. 79 of 2006(Meru)
[10]
European Convention for the Protection of Human Rights and Fundamental Freedoms
1950 ; Interim Constitution of South Africa Act 200 of 1993, Constitution of
Mauritius,
[11]
Lord Hope, Porter vs. Magill (2002) 1
All ER 465; See also Lord Steyn, Darmalingum
vs. State(2000) 5 LRC 522
[12]
Lord Hutton, Flowers vs. The Queen(2000)
1 WLR 2396
[13]
Explicit or Implicit
[14] R v Morin (1992) 1 SCR 771
[15] Dyer vs. Watson (2004) 1 AC 379, lord
Bingham
[16]
Lord Steyn, Darmalingum vs. State(2000)
5 LRC 522
[17]
It is a civil right
