Bench Bulletin - Issue 12 - Kenya Law Reports

KENYA LAW REPORTS
BENCH BULLETIN
FROM THE COURTS — HIGH COURT
Criminal Practice and Procedure-affidavit-amendment-whether an affidavit may be amended- claim that the affidavit
sworn by the Investigating Officer explaining the delay was referring to a different case-whether there was need for the
respondent to seek to either amend the affidavit or alternatively, to seek leave to file a supplementary affidavit -where the
only lawful option would be to file a supplementary affidavit-whether the affidavit was defective
The applicant, who had been charged with murder, made a constitutional application to the court with a claim that his
constitutional rights under sections 70 (a) and 72 (3) (b) and 77 (1) of the Constitution had been violated. In particular,
the accused asserted that his detention beyond the period of 14 days from the date of his arrest, constituted a violation
of his constitutional rights. The applicant had been held in police custody for six months before being arraigned in
court.
The Investigating Officer swore an affidavit in which he deponed that the delay in bringing the accused to court was
attributable to a delay in conducting the post-mortem examination of the victim’s body as the family of the deceased
could not be traced in good time to identify the body. The Investigating Officer also disclosed that the City Mortuary
could not release to the police the results of the post mortem examination early enough, because of the unpaid mortuary
charges.
The accused submitted that the affidavit did not correlate to the case, because in his view, it was sworn to explain
issues which arose in Criminal Case No. 87 of 2007, (whereas the case at hand was Criminal Case No. 86 of 2007). He
further argued that the inability of the victim’s family to raise the fee payable for the post- mortem examination was
not a justifiable explanation. The accused re-emphasized that where the constitutional rights of an accused person
have been violated, he was entitled to an acquittal.
The respondent on the other hand submitted that if there was any breach of the constitutional rights of the accused,
the court had to apply the provisions of the Constitution in a wholesome manner. It was contended that the rights of
the accused must be weighed as against the rights of the victim of the offence.
Held:
1. A perusal of the court file revealed that the affidavit of the Investigating Officer was sworn on the file before the
court. There was therefore no need for the respondent to seek to either amend the affidavit or alternatively, to seek
leave to file a supplementary affidavit.
2. An affidavit could not be amended as it is made up of evidence, which the deponent of such affidavit tenders on
oath. If after the affidavit is sworn and tendered to court or to any other body the deponent realizes that there are
errors in it, the only lawful option available to him for setting out the correct factual position is through a supplementary
affidavit.
3. Pursuant to section 72 (3) of the Constitution, the police were obliged to explain to the court their reason for taking
the accused to court so long after the expiry of the 14 days which the law allowed them. The onus was on the police
to demonstrate that they took the applicant to court as soon as was reasonably practicable
4. The body of the victim could not be identified until the members of the deceased’s family were traced and without
the post mortem results, the cause of death could not be established. As long as the cause of death was not ascertained
by the pathologist or by any other duly qualified medical practitioner, it would have been premature to prefer charges
of murder.
5. The scope of the reasons or explanations for not bringing an accused person to court within the prescribed time
which may be acceptable to the court could not be exclusively delineated. So long as the explanation proffered was
reasonable and acceptable, no problem would arise. Each case had to be considered on the basis of its peculiar facts
and circumstances. In deciding whether there had been a breach of section 72 (3) of the Constitution, the Court had
to act on evidence.
6. Section 71 of the Constitution protected the right to life. However even though the deceased had been killed, the
court could not use section 71 of the Constitution as a counter-weight to section 72(3) as an accused person is deemed
to be innocent until and unless his guilt is proved. Nonetheless, the court had an obligation to give effect to section
70 of the Constitution which provided that the rights and freedoms were subject to the rights of others and for public
interest. Although the accused was entitled to his fundamental rights and freedoms, the enjoyment of the same was
subject to the respect for the rights and freedoms of others and to public interest.
7. Public interest required the court to carry out its mandate of dispensing justice without fear or favour. Whilst an
accused person is presumed innocent until and unless he is proved guilty, public interest required the court to determine
whether or not the accused was guilty. That could only be done if the prosecution was given the opportunity to lead
evidence, during a trial. But then again, the courts had to also safeguard the fundamental rights of an accused person.
It was for that reason that the court remained ever vigilant in the course of carrying out its mandate
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