ELIJAH MBONDO MUSYOKI & 2 others v REPUBLIC [2008] KEHC 2911 (KLR)

Facts

The applicants were arrested on 18/11/2002 and charged with robbery with violence. They were taken to court on 4/12/2002, 2 days after the 14-day period stipulated in Section 72(3)(b) of the Constitution.

Issues

1. whether the incarceration of the accused persons for 16 days at the police station before being arraigned before the court for plea was an infringement of their fundamental right as guaranteed under Section 72 (3) of the Constitution.
2. whether the said violation of the accused’s fundamental right warrants the trial to be declared a nullity ab initio.

Reasoning

The court held that the applicants were not brought before a court within 14 days of their arrest, which is a violation of Section 72(3)(b) of the Constitution. The court found that the delay was unreasonable and that the Republic failed to prove that the applicants were brought before a court as soon as was reasonably practicable.

Outcome

The trial is declared a nullity and the applicants are ordered to be released.

Authorities cited