John walter Onyango Otieno, Erastus Mwaniki Githinji, John Luka Osiemo
High Court at Nairobi (Milimani Law Courts)
Pattni & another v Republic
High Court, at Nairobi January 31, 2001
Githinji, Osiemo & Otieno JJ
Miscellaneous Civil Application Nos 322 & 810 of 1999 (consolidated)
Constitutional Law - constitutional reference - jurisdiction of the High Court in the enforcement of fundamental rights and freedoms - constitutional supervisory jurisdiction of the High Court over subordinate courts – incidence and scope of the two jurisdictions - Constitution sections 65, 84 - Civil Procedure Rules order LIII.
Constitutional Law - constitutional reference - fundamental rights and freedoms - application for enforcement of fundamental rights and freedoms – form of such an application – right to a fair trial by an impartial tribunal within a reasonable time.
The applicants, who had been charged in the subordinate court with various criminal cases, filed these constitutional applications before the High Court. They sought various declarations from the Court seeking mainly to establish that their rights to a fair trial, by an impartial tribunal within a reasonable time, had been violated.
1. If a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.
2. Although international instruments testify to the globalization of fundamental rights and freedoms of an individual, it is the Constitution as a law which is paramount. However, the court can in appropriate cases, take account of the emerging international consensus of values in the area of human rights.
3. The dictum in Anarita Karimi Njeru vs Republic  KLR 154 to the effect that section 84(1) of the Constitution provides the individual with a means of obtaining redress only if he has never utilized such other action as was lawfully available to him was not correct as it failed to emphasize the words “without prejudice to any other action with respect to the same matter which is lawfully available” which in their context simply mean that, the fact that an applicant seeks redress under section 84 (1) does not preclude the remedy under any other law, lawfully available to him.
4. The Constitution centers original jurisdiction in the High Court for the enforcement of fundamental rights and freedoms.
5. Section 65 (2) of the Constitution confers on the High Court constitutional supervisory jurisdiction over subordinate courts and the court martial akin to judicial review. Different rules of practice and procedure, not necessarily those contained in order LIII of the Civil Procedure Rules, are envisaged though they have not been formulated. In the absence of such rules an applicant can presumably approach the High Court by any procedure recognized by law including an originating motion.
6. (obiter) The potential of the constitutional supervisory jurisdiction of the High Court in criminal and civil proceedings in subordinate courts, which seems wider than the judicial review jurisdiction under order LIII of the Civil Procedure Rules, largely remains untapped by legal practitioners.
7. The original jurisdiction under section 84(1) is reserved for purposes of enforcement of fundamental rights and freedoms and is distinct from the supervisory jurisdiction under section 65(2) which is reserved for the purposes of ensuring that justice is duly administered by subordinate courts.
8. Unlike Kenya, the United Kingdom (UK) does not have a written constitution with the status of a superior law entrenching human rights and freedoms. In the UK the distinction between rights and remedies in public law and in private law is often blurred and human rights and freedoms are almost exclusively enforced by the supervisory jurisdiction of superior courts of justice.
9. While in the UK judges have no power to review legislation in order to establish whether it complies with the terms of the Constitution, Kenyan judges have power to review legislation to establish whether it is inconsistent with the Constitution or any written law.
10. Fair trial in the context of section 77 of the Constitution, does not refer to the merits or bona fides of the prosecution case. Rather it deals with the trial process, the decision making process, sometimes referred to as ‘procedural due process.”
11. The several orders denying the applicant bail on some occasions during trial or putting conditions of bail like the depositing of passports in court made by the trial magistrate which forms the subject of much criticism by the applicant cannot amount to breach of right to fair trial.
12. The requirement of fairness applies not only to courts of law but the presumption of innocence in favour of an accused charged with a criminal offence applies to everyone and every agency involved in the criminal process including the general public who constitutes the venue of every public trial. This presumption, however, only applies when a person has been charged with a criminal offence. It does not apply before a person has been charged with a criminal offence.
13.Fair trial by an independent and impartial court does not mean acquittals or convictions.
14.The factors to be considered in determining whether an accused has been deprived of the constitutional right to a hearing within a reasonable time include the length of delay, the reasons given by the prosecution to justify the delay, the responsibility of the accused for asserting his rights and prejudice to the accused.
15. The delay of a trial envisaged by the language of section 77 of the Constitution runs from the date a person is charged in court with a criminal offence.
16. It is not the function of the Constitutional Court to call up all the evidence that the prosecution intends to present to the trial court, review it microscopically and form an opinion as to whether or not there is prima facie evidence to support the charges.
1. Anarita Karimi Njeru v Republic (No 1)  KLR 154
2. Okunda v Republic  EA 453
3. Bell v DPP  3 WLR 73
4. Mitchell v DPP  3 WLR 724
5. Hinds v R  AC 195; 2 WLR 366;  1 All ER 353
6. Maharaj v Attorney General of Trinidad & Tobago (No 2)  2 WLR 902;  2 All ER 670;  AC 385
7. Wamwere, Koigi v Attorney General High Court Miscellaneous Application No 574 of 1990
8. Director of Public Prosecutions (Tanzania) v Haji & others Criminal Appeal No 191 of 1994
9. Grant v DPP  AC 190;  3 WLR 352;  Crim LR 722
10. Boodram v Attorney General (1996) 1 CHRLD 58
11. Republic v Tabere (1983) LRC (crim) 8
12. Thornhill v Attorney General of Trinidad & Tobago  2 WLR 510
13. DPP v Humphrys  2 All ER 497;  AC 1;  2 WLR 857
14. Williams v Spautz  174 CLR 509
15. Connelly v DPP  2 All ER 401;  AC 1254;  2 WLR 1145
1. Constitution of Kenya sections 3, 26(3),(8); 65(2); 70; 71; 72; 74; 76; 77; 79; 80; 81; 82; 84(1); 105(2)(b); 123(8)
2. Civil Procedure Rules (cap 21 Sub Leg) order LIII
3. Government Proceedings Act (cap 40)
4. Police Act (cap 84) section 20(2)
5. Criminal Procedure Code (cap 75) sections 20(2); 119; 120; 121(1)
1. Universal Declaration of Human Rights, 1948
2. African Charter of Human and Peoples’ Rights, 1981
3. International Covenant on Civil and Political Rights, 1966
Mr Rebello for the Applicant
Mr Horace Okumu for the Respondent
Mr Muthoga as Amicus Curiae