JOSEPH MUYA OLOO & ROSEMARY OKINYO MUYA v REPUBLIC [2009] KEHC 235 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA

Miscellaneous Criminal Application 52 of 2009

JOSEPH MUYA OLOO .....................................1ST APPLICANT

ROSEMARY OKINYO MUYA........................... 2ND APPLCIANT

V E R S U S

REPUBLIC..............................................................RESPONDENT

R U L I N G

In their application filed on 30th April, 2009 the applicants seek orders that the violation of their fundamental Constitutional rights to liberty be determined. The application is brought undersection 84 (1)and(2), 72 (3) (b)and77 (1)of the Constitution.

The applicants contend that they were arrested on 6th March 2008 and were taken for plea on 27th March, 2008 when they were charged with murder, vide High Court Criminal Case No.15 of 2008. The applicants further contend that their Constitutional rights were violated as they were to be arraignedbefore the court within fourteen (14) days from the date of arrest and that they should be released as the police contravened the law. They pray that this court “quashes the charge they are facing and declare them a nullity and they be  set free forthwith.”

The State did not respond to the applicants’ contentions by way of replying affidavit. No explanation was given as to the correctness or otherwise of the applicants’ allegations. This being the case, I do find that indeed the applicants were not arraigned before court within 14 days as stipulated by the law. The applicants’ pre-trial Constitutional rights as enshrined in the Constitution were therefore violated.

Having found that the applicants’ Constitutional rights were violated, the next issue is whether the charge facing the applicants should be declared as a nullity and quashed resulting to the acquittal of the applicants. I do not find any provision in the Constitution which specifically states that a victim of violation of pre-trial rights should be acquitted of the charges facing him. Violation of the applicant’s rights does not automatically trigger acquittal.

The only relevant Constitutional provision on this matter is section 72 (6) which allows victims to claim compensation from those persons who violated their rights. I therefore do find that the applicants’ Constitutional rights to be arraigned before court within 14 days from the date of arrest were violated. The applicants are at liberty to claim compensation from the violators of those rights. The High Court Criminal Case No. 15 of 2008 shall proceed for hearing. This application is dismissed. It is so ordered.

Delivered, Dated and Signed at Kakamega this 5th day of November, 2009

SAID J. CHITEMBWE

J U D G E