PETER OCHIENG AMUNGA v REPUBLIC [2008] KEHC 856 (KLR)

PETER OCHIENG AMUNGA::::::::::::::::::::::::::::::::::: APPLICANT

V  E  R  S  U  S

REPUBLIC :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

R U L I N G

The applicant has petitioned this court for a declaration that his constitutional rights had been infringed.

He also asks the court to declare that the delay in bringing him before the court had deprived him of his right to a fair trial.

If the court is minded to make the said two declarations, the applicant believes that he was entitled to an order that he be set at liberty forthwith.

The facts giving rise to the petition herein are brief and uncontested.  The applicant was arrested on 2nd February 2007.  However, he was not taken to court until six months later, on 8th August 2007.

Between the date of his arrest and the date when he was taken to court, the applicant was in custody, at the Butere Police Station.

The learned state counsel has explained that on 4th August 2007, the Provincial State Counsel, Mrs. Kithaka, advised the police to charge the applicant with manslaughter.  The said advise was given after the Provincial state counsel had got the police file from the Provincial Criminal Investigation Officer, Western Province.

The court was told that in order for the file to get to the P.C.I.O. Western Province, the Officer Commanding Butere Police Station had sent it through the District Criminal Investigation Officer, Butere/Mumias.

Clearly, the police have an elaborate and time-consuming bureaucratic procedure for getting any file from the police station to the state law offices.  Whether such a system is necessary for any given reason, it nonetheless results in long delays.

Meanwhile, as the police go through the paces, the suspect would continue to be in custody.  Certainly, where such a delay goes beyond the period allowed for in the Constitution, this court would have no hesitation to hold that the constitutional rights of the suspect had been infringed.

In this case, the court was told that the applicant was originally charged with murder.

Even assuming that that was the case, the question would still remain, why did the police delay for six months before presenting the applicant before a court of law?

Pursuant to section 72 (3) of the Constitution, any person who is arrested or detained upon a reasonable suspicion of having committed a criminal offence punishable by death, should be brought before a court within 14 days, or as soon thereafter as possible.  Indeed, the Constitution stipulates that if the suspect was not brought before court within the 14 days, the person who thereafter asserts that the suspect had been brought before the court as soon as is reasonably practicable, has the obligation to prove his assertion.

In this case, in which the applicant was not brought before the court for over 6 months, there is no doubt whatsoever that there was an inordinate delay.

The delay in having the police file delivered to the Provincial state counsel is definitely not a reasonable explanation, by any stretch of imagination.

Given that it already took 6 months for the state to take the applicant to court for the first time, I am satisfied that the applicant is not likely to be tried within a reasonable time.

In the event, the continued confinement of the applicant in custody would be adding insult to injury.

The learned state counsel has urged this court to weigh the rights of the applicant against the rights of the family of the deceased.

I have no doubt that that is a legitimate request, in the interest of justice.  I so say because two wrongs do not make a right.

The termination of the trial against the applicant would be right, if this court had a way of ascertaining that the applicant was innocent.  But that I cannot do, because the innocence or guilt of the applicant can only be established after a full trial.

Therefore, if the applicant was to be set free now, after the trial against him was terminated, it is possible that his innocence or guilt may never be determined by any court.  In fact, it is not just possible, but a certainty, in the event that the applicant was acquitted.

If that were to happen, the family of the deceased would be justified in believing that a person who may be guilty was set free.

But then again, every suspect who is facing a criminal charge is presumed to be innocent until and unless he is proved guilty.

Bearing in mind all those factors, and weighing the same on the scales of justice, I find and hold that in this case, justice will be served by setting free the applicant.

Accordingly, the proceedings in criminal case No. 2481/07 is terminated, as otherwise the continuation thereof would occasion further violation of the applicant’s constitutional rights.

It is ordered that the applicant be set at liberty forthwith, unless he is otherwise lawfully held.

Dated, Signed and Delivered at Kakamega, this 23rd day of October, 2008.

FRED A. OCHIENG

J U D G E