VIOLATION OF SUSPECT'S CONSTITUTIONAL RIGHT NOT A REASON FOR ACQUITTAL

Julius Kamau Mbugua v Republic [2010] KLR (www.kenyalaw.org)

Court of Appeal at Nairobi
EM Githinji, PN Waki & A Visram JJ A
October 8, 2010
Reported by Michael Murungi
The Court of Appeal has delivered a landmark judicial opinion on a question of great public importance over which there has been a divergence of
interpretation in both the High Court and the Court of Appeal: whether a criminal suspect whose constitutional rights have been violated by a prolonged
and unreasonable period of incarceration before his first arraignment in court would be entitled to an acquittal or a discharge regardless of the evidence
against him.
The repealed Constitution provided in section 72(3) that a person who is arrested upon reasonable suspicion of having committed a criminal offence
was to be brought to court as soon as it was reasonably possible to do so. Where the accused person was not brought to court within 24 hrs or within
14 days if his arrest related to an offence punishable by death (such as murder and robbery with violence) he was to be brought to court within fourteen
days. Where a suspect is detained for a longer period, the section placed the burden on the prosecution to prove that he had been so detained for a
reasonable and justifiable purpose.
In a fifty-page judgment in which it has analyzed previous Kenyan case law and made a comparative analysis of international jurisprudence, the Court
of Appeal has now stated that the breach of a right to personal liberty of a suspect by police before trial is merely a breach of a civil right, though
constitutional in nature, which is beyond the statutory duty of a criminal court and which was by section 72(6) of the repealed Constitution expressly
compensatable by damages . The breach of the right to personal liberty is not trial-related and it did not render the subsequent trial a nullity. If police
breached the right, the suspect had the right to apply to the High Court for a writ of habeas corpus to secure his release . In contrast, the right to a trial
within a reasonable time guaranteed by section 77 (2) was trial-related. It was not the duty of a trial court or an appellate court dealing with an appeal
from a trial court to go beyond the scope of the crim inal trial and adjudicate on the violations of the right to personal liberty which happened before the
criminal court assumed jurisdiction over the accused. The right protected by section 72 (3) (b) was the right to be taken to court as soon as reasonably
practicable and not a right not to be taken to court after unreasonable delay.
Back in 2006 when in Albanus Mwasia Mutua vs. Republic [2006] KLR the Court of Appeal held that an unexplained violation of a constitutional right
will normally result in an acquittal irrespective of the nature and strength of the evidence which may be adduced in support of the charge, that decision
"had immediate ramifications on the criminal justice system" the Court has how noted. The majority of appellants invariably raised the issue of unlawful
detention. Initially many appellants had some measure of success and many appeals were allowed and appellants released on the ground that their
constitutional rights had been violated. "It was not before long that a sharp divergence of opinion arose on the interpretation of the law amongst the
judges of the Court of Appeal and the High Court."
The case at hand involved one Julius Mbugua who was arrested on November 7 2005 on the suspicion that he had murdered his wife, Milcah
Wamanji. The offence was said to have been committed in September 2005 in Gatunyu Village of Thika District. On February 8 2006, which was about
107 days after his arrest, he was arraigned before the High Court for trial. At a stage during his trial, Mbugua filed a petition under section 84 of the now
repealed Constitution seeking a declaration that his detention for the period of 107 days and his subsequent arraignment on the criminal charge was a
gross violation of his constitutional rights and that on that basis, he should be discharged and the state forever restrained from arresting or prosecuting
him. Ultimately, the petition was dismissed on the main ground that it was a mere afterthought and it had been brought too late in the trial to afford the
prosecution adequate time to rebut it. Mbugua had filed an appeal against th e dismissal of his petition.
From its consideration of Commonwealth and international jurisprudence on the right to be tried within a reasonable time, the Court of Appeal made
several general observations. First, although the right to a trial within a reasonable time is part of international human rights law, the right is not
absolute as it must be balanced with equally fundamental societal interest in trying suspected criminals. The general approach to the determination
whether the right has been violated is a judicial determination whereby the court is obliged to consider all the relevant factors within the context of the
whole proceedings. What amounts to unreasonable incarceration depends on the particular circumstances of each case and in the context of domestic
legal system and the prevailing economic, social and cultural conditions. Although an applicant has the ultimate legal burden throughout to prove a
violation, the evidentiary burden may shift depending on the circumstances of the case. The standard of proof of an unconstitutional delay is a high one
and a relatively high threshold has to be crossed before the delay can be categorized as unreasonable. The violation of the right should be raised at
the earliest possible stage in the proceedings to enable the court to give an effective remedy otherwise the right may be defeated by the doctrine of
waiver where applicable. The right is to trial without undue delay. It is not a right not to be tried after undue delay (except in Scotland) and it is not
designed to avoid trials on the merits. The remedy for the violation of the right varies from jurisdiction to jurisdiction but in most of the Commonwealth
countries with Bill of Rights and a Constitution based on the Westminster model, courts can grant any relief they consider appropriate in the
circumstances of the case. In some jurisdictions, where the applicant is already convicted the quashing of a conviction is not considered a normal
remedy and the court could take into account the fact that the applicant has been proved guilty of a crime, the seriousness and prevalence of the crime
and design an appropriate remedy without unleashing a dangerous criminal to the society.
The Court further noted that even if unlawful pre-arraingment incarceration is shown to have a direct bearing on the subsequent trial, nevertheless, to
acquit or discharge the accused person would be a disproportionate, inappropriate and draconian remedy seeing that the public security would be
compromised. If by the time an accused person makes an application to the court the right has already been breached, the only appropriate remedy

under Section 84(1) of the repealed Constituition was an order for compensation for such breach. The Court agreed with Justice A. Emukule in
Republic v David Geoffrey Gitonga that a breach of section 72(3)(b) entitled the aggrieved person to monetary compensation only.
Regarding the procedure applied in the hearing of Mbugua's constitutional petition in the High Court, the Court of Appeal observed that it had been
unprocedural for the Court to hear the petition firstly as part of the trial proceedings and secondly in the presence of assessors who had no power to
give opinions in an application of that nature.
The appeal was dismissed with no order as to costs.