By Michael Murungi
October 2007
(This article was published in the Daily Nation newspaper issue of October 15, 2007 page 14 col. 1)
Ronald Manyonge Chepkui v Republic [2007] eKLR
High Court at Kitale
Justice F.A. Ochieng
November 11, 2007
Kenya’s criminal justice system is on the threshold of a legal debate on a question that has troubled the minds of judges and legal scholars in many parts of the world: should an accused person whose constitutional rights have been violated by an unjustifiably long period of pre-trial confinement be released even in the face of overwhelming evidence of his guilt?
Last week, the High Court, considering itself bound by a previous decision of the Court of Appeal, released a convicted child molester after it found that his constitutional rights had been violated by a delay of at least 48 hours in bringing him to court.
Under section 72 of the Constitution of Kenya, where a person is arrested upon reasonable suspicion of his having committed a criminal offence, then, if he is not released, he is required to be brought before a court as soon as is reasonably practicable. Where the person is not brought before a court within twenty- four hours of his arrest, or within fourteen days of his arrest where the arrest relates to an offence punishable by death, the burden of proving that he was brought to court as soon as was reasonably practicable rests upon the prosecution.
On April 27, 2007, the Court of Appeal had given its decision in the case of Gerald Macharia Githuku v Republic [2007] eKLR. The decision stood out as a remarkably bold defence of due process, the rule of law and the constitutional right of an arrested person. Its point of departure from previous jurisprudence on the subject was the subordination of the proven guilt of a violent robber to the constitutionality of his treatment by law enforcement authorities immediately after his arrest. Gerald had been arrested upon his suspicion for the offence of robbery with violence, for which the only punishment prescribed by law is the death penalty. He was held in custody for 17 days before his first arraignment in court. This was three days beyond the normal period prescribed by the Constitution. However, the issue of Gerald’s prolonged incarceration had not been substantially dealt with either before the Nairobi Chief Magistrate’s Court which had convicted and sentenced him to death nor before the High Court which had dismissed his first appeal.
In their judgment on Gerald’s second appeal, Court of Appeal Judges E.O. O’Kubasu, J.W. Onyango Otieno and W.S. Deverell spoke with unanimity in their defence of constitutional rights. They observed that even though the delay of three days in bringing Gerald to court did not cause him any substantial prejudice and although the evidence showed that he was guilty as charged, nevertheless the failure by the prosecution to abide by the requirements of the Constitution could not be disregarded. The prosecution, the Judges found, had failed to satisfy the Court that Gerald had been brought before the court as soon as was reasonably practicable.
Being mindful of the fact that Gerald had been in custody for over 12 years since his arrest and that the two persons with whom he had been charged had died in custody, the Court of Appeal set aside his conviction and sentence and released him.
This month, Justice F.A. Ochieng, the resident High Court Judge in Kitale, was faced with a similar legal question in the case of Ronald Manyonge Chepkui v Republic. On 13th September 2006, W.A. Juma, the Senior Principal Magistrate at Kitale, had convicted Ronald for the offence of indecent assault on a female (contrary to section 145(1) of the Penal Code) and sentenced him to imprisonment for 10 years. The victim of the offence was a young girl aged six years.
Ronald filed an appeal against the magistrate’s judgment in the High Court in which he raised several grounds of appeal. Among these grounds was the argument that because he had not been brought to court within 48 hours after his arrest, his constitutional rights had been violated. Even though there was some discrepancy in the evidence regarding the actual date of his arrest, it was clear that Ronald had been held in custody for at least four days before his first arraignment in court. This led Justice Ochieng to observe that the prosecution had violated his rights as enshrined in section 72(3) of the Constitution.
The Judge then considered the decision of the Court of Appeal in Gerald’s case. He recalled that the Court had taken into account the fact that Gerald had been in custody for a long period and that his co-accused had died in custody. In his opinion, therefore, the Court of Appeal did not lay down a strict rule that accused persons or appellants are to be released once it has been established that they had not been arraigned in court within the time prescribed by section 72(3) of the Constitution. Rather, the position in law appeared to be that an apparent violation of a constitutional right which is not explained by the prosecution will normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge. Ideally then, in every case where there is a failure to strictly comply with section 72(3), the prosecution should be obliged to offer an explanation to the court for the delay in bringing the accused person to court even if he has not raised the issue himself.
However, the proposition that an acquittal should necessarily follow where the prosecution fails to discharge its duty of establishing that the accused person had been brought to court within a reasonable time was too troubling for the Judge to contemplate. “I shudder to think of the possible ramifications” he remarked, “and venture to suggest that persons whose constitutional rights had been violated in [this manner] should, if found guilty, serve the sentences…..However, the person should have the opportunity, if he wished, to seek appropriate relief against those that had violated his constitutional rights”.
Justice Ochieng had found no merit in all the other grounds argued by Ronald in support of his appeal. As far as the evidence stood, therefore, there was nothing in the appeal upon which the High Court could reverse the finding by the trial court that he had committed the offence of defilement. The Judge nevertheless recalled that as a Judge of the High Court, he was bound by the decision of the Court of Appeal in the Gerald Case. Accordingly, he noted that notwithstanding the evidence against Ronald, he was obliged to quash the decision of the trial court on the basis of the violation of Ronald’s fundamental rights. He therefore allowed the appeal and ordered that Ronald should be set free.
High Court at Kitale
Justice F.A. Ochieng
November 11, 2007
Kenya’s criminal justice system is on the threshold of a legal debate on a question that has troubled the minds of judges and legal scholars in many parts of the world: should an accused person whose constitutional rights have been violated by an unjustifiably long period of pre-trial confinement be released even in the face of overwhelming evidence of his guilt?
Last week, the High Court, considering itself bound by a previous decision of the Court of Appeal, released a convicted child molester after it found that his constitutional rights had been violated by a delay of at least 48 hours in bringing him to court.
Under section 72 of the Constitution of Kenya, where a person is arrested upon reasonable suspicion of his having committed a criminal offence, then, if he is not released, he is required to be brought before a court as soon as is reasonably practicable. Where the person is not brought before a court within twenty- four hours of his arrest, or within fourteen days of his arrest where the arrest relates to an offence punishable by death, the burden of proving that he was brought to court as soon as was reasonably practicable rests upon the prosecution.
On April 27, 2007, the Court of Appeal had given its decision in the case of Gerald Macharia Githuku v Republic [2007] eKLR. The decision stood out as a remarkably bold defence of due process, the rule of law and the constitutional right of an arrested person. Its point of departure from previous jurisprudence on the subject was the subordination of the proven guilt of a violent robber to the constitutionality of his treatment by law enforcement authorities immediately after his arrest. Gerald had been arrested upon his suspicion for the offence of robbery with violence, for which the only punishment prescribed by law is the death penalty. He was held in custody for 17 days before his first arraignment in court. This was three days beyond the normal period prescribed by the Constitution. However, the issue of Gerald’s prolonged incarceration had not been substantially dealt with either before the Nairobi Chief Magistrate’s Court which had convicted and sentenced him to death nor before the High Court which had dismissed his first appeal.
In their judgment on Gerald’s second appeal, Court of Appeal Judges E.O. O’Kubasu, J.W. Onyango Otieno and W.S. Deverell spoke with unanimity in their defence of constitutional rights. They observed that even though the delay of three days in bringing Gerald to court did not cause him any substantial prejudice and although the evidence showed that he was guilty as charged, nevertheless the failure by the prosecution to abide by the requirements of the Constitution could not be disregarded. The prosecution, the Judges found, had failed to satisfy the Court that Gerald had been brought before the court as soon as was reasonably practicable.
Being mindful of the fact that Gerald had been in custody for over 12 years since his arrest and that the two persons with whom he had been charged had died in custody, the Court of Appeal set aside his conviction and sentence and released him.
This month, Justice F.A. Ochieng, the resident High Court Judge in Kitale, was faced with a similar legal question in the case of Ronald Manyonge Chepkui v Republic. On 13th September 2006, W.A. Juma, the Senior Principal Magistrate at Kitale, had convicted Ronald for the offence of indecent assault on a female (contrary to section 145(1) of the Penal Code) and sentenced him to imprisonment for 10 years. The victim of the offence was a young girl aged six years.
Ronald filed an appeal against the magistrate’s judgment in the High Court in which he raised several grounds of appeal. Among these grounds was the argument that because he had not been brought to court within 48 hours after his arrest, his constitutional rights had been violated. Even though there was some discrepancy in the evidence regarding the actual date of his arrest, it was clear that Ronald had been held in custody for at least four days before his first arraignment in court. This led Justice Ochieng to observe that the prosecution had violated his rights as enshrined in section 72(3) of the Constitution.
The Judge then considered the decision of the Court of Appeal in Gerald’s case. He recalled that the Court had taken into account the fact that Gerald had been in custody for a long period and that his co-accused had died in custody. In his opinion, therefore, the Court of Appeal did not lay down a strict rule that accused persons or appellants are to be released once it has been established that they had not been arraigned in court within the time prescribed by section 72(3) of the Constitution. Rather, the position in law appeared to be that an apparent violation of a constitutional right which is not explained by the prosecution will normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge. Ideally then, in every case where there is a failure to strictly comply with section 72(3), the prosecution should be obliged to offer an explanation to the court for the delay in bringing the accused person to court even if he has not raised the issue himself.
However, the proposition that an acquittal should necessarily follow where the prosecution fails to discharge its duty of establishing that the accused person had been brought to court within a reasonable time was too troubling for the Judge to contemplate. “I shudder to think of the possible ramifications” he remarked, “and venture to suggest that persons whose constitutional rights had been violated in [this manner] should, if found guilty, serve the sentences…..However, the person should have the opportunity, if he wished, to seek appropriate relief against those that had violated his constitutional rights”.
Justice Ochieng had found no merit in all the other grounds argued by Ronald in support of his appeal. As far as the evidence stood, therefore, there was nothing in the appeal upon which the High Court could reverse the finding by the trial court that he had committed the offence of defilement. The Judge nevertheless recalled that as a Judge of the High Court, he was bound by the decision of the Court of Appeal in the Gerald Case. Accordingly, he noted that notwithstanding the evidence against Ronald, he was obliged to quash the decision of the trial court on the basis of the violation of Ronald’s fundamental rights. He therefore allowed the appeal and ordered that Ronald should be set free.
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