The appellant was charged and convicted of three counts of robbery with violence and one count of rape, with the charge of rape stating that the appellant "jointly with another not before the court" had carnal knowledge of the complainant. The trial court sentenced him to death for robbery with violence, which is a capital offense. He appealed on the grounds that the rape charge was defective and that the police violated his constitutional rights because they held him for 24 days without bringing him to court. The High Court dismissed his first appeal. However, hearing his second appeal, the Court of Appeal held that multiple men cannot jointly commit the offense of rape against one woman, so the offenders cannot be charged jointly. The Court quashed the appellant's conviction for rape because each offender should have been charged on a separate individual count of rape. The Court also quashed the robbery with violence conviction and sentence because the Constitution (sec. 72(3)) requires police to bring detainees accused of a capital offense to court within 14 days, but in this case police improperly held the appellant for 24 days without cause before bringing him to court. The Court dismissed the state counsel's arguments that the length of the appellant's detention was a moot issue because he failed to raise it in earlier proceedings. The Court stated that it is the responsibility of the prosecuting authorities to justify any delay and a judge's duty to raise issues of unlawful detention if the defendant does not.
Murunga v. Republic