The Kenya Supreme Court ruled that acquitted persons will be detained in jail if the Director of Public Prosecution files an appeal.
If an accused person will be acquitted by either the High Court or the Court of Appeal and the DPP appeals then they will stay in custody until the case is heard and determined.
The Kenya Supreme Court ruled: “Time is now ripe for legislative arm of Government to consider such legislation. Kenya has no legal provision that directly speaks to the power of an appellate court to grant orders of committal to prison for an acquitted person.”
This ruling was made in a lawsuit against two Iranians Ahmad Mohammed and Sayeed Mousavi who had been acquitted of terrorism charges by the Court of Appeal.
However, the DPP moved to the Supreme court to appeal the decision by the appellate court and obtained orders to detain the two who were accused of plotting a terror attack in Kenya, until their appeal is heard and determined.
Before this ruling by the Kenya Supreme Court, all accused persons acquitted by a court are usually set free until the Appeal Court orders for them to be re-arrested.
The Supreme Court agreed that being vindicated from an offence does not mean it is the end of a trial process.
However, if the DPP challenges an acquittal and convinces a judge that the accused person should be detained until the appeal is heard and determined, the court should not hesitate to issue such orders.
The Appellate Court previously held that Kenyan courts had no jurisdiction to stay an order of acquittal and remand in custody a respondent whose acquittal is being challenged on appeal.
However, they ruled that the DPP ought to convince the appellate court that the accused person will be a flight risk in the event he or she will be released before the appeal is heard and determined.
The five-judge bench led Chief Justice David Maraga, Mohamed Ibrahim, Jackton Ojwang, Smokin Wanjala and Njoki Ndung’u, delivered the ruling on Friday.