M.W v Republic [2013] eKLR detained has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with. This law presupposed that the duty of proving that an accused person was brought to court within a reasonable time lay with the person who alleged that the above provision of the law was complied with. Ultimately this was the duty of the arresting or investigating officer or the prosecution on their behalf. The accused is therefore bestowed with the onus of bringing to the attention of the court of any alleged violation of his constitutional rights in the event that the police did not offer the explanation in the first instance. Throughout the trial the Appellant did not bring it to the attention of the court that he had been detained in police cells for four days. His complaint has only been raised in this appeal. So then, would his detention in police custody for more than twenty four hours render the trial a nullity? In the case of DOMINIC MUTIE MWALIMU –VS- REPUBLIC (2008) e KLR S.E.O Bosire, E. M. Githinji & J. A. Aluoch, J.J.A held as follows:“The section further provides that where such a person is not taken to court within either the twenty-four hours for non-capital offence or fourteen days for capital offence as stipulated by law, then the burden of proving that such a person has been brought to court as soon as is reasonably practicable rests on the person who alleges that the Constitution has been complied with. Thus,where an accused person charged with a non-capital offence brought before the court after twenty-four hours or after fourteen days where he is charged with a capital offence complains that the provisions of the Constitution has not been complied with, the prosecution can still prove that he was brought to court as soon as is reasonably practicable notwithstanding, that he was not brought to court within the time stipulated by the Constitution. In our view, the mere fact that an accused person is brought to court either after the twenty-four hours or the fourteen days, as the case may be, stipulated in the Constitution does not ipso facto prove a breach of the Constitution. The wording of section 72 (3) above is in our view clear that each case has to be considered on the basis of its peculiar facts and circumstances. In deciding whether there has been a breach of the above provision the Court must act on evidence. Additionally, a careful reading of section 84 (1) of the Constitution clearly suggests that there has to be an allegation of breach before the Court can be called upon to make a determination of the issue which allegation has to be raised within the earliest opportunity”. Again in REPUBLIC -VS- DAVID GEOFFREY GITONGA HIGH COURT CRIMINAL CASE NO. 79/2006 (MERU), a dissenting view of Anyara Emukule, J. cited in JULIUS KAMAU MBUGUA -VSREPUBLIC (2010) e KLR, the learned Judge said: "I am aware that contrary opinions have been expressed by others in this court. I do not share those views. I hold the considered view that such trial is not a nullity at all. These are my reasons. Firstly, the principle of nullity presupposes that the process of trial is void either because it is against public policy, law, order, and indeed, nullity is non-curable. Secondly, for a trial to be void in law it must be shown either that the offence for which the accused is being tried is non-existent, or that the authority or court seized of the matter has no authority to do so. It is public policy of all civilized States that offenders be subjected to due process in respect of defined offences, and by duly competent courts or tribunal. A trial will be a nullity where the offence is non-existent or there is lack of jurisdiction. To say otherwise would be against both public policy and the law. The court will not act against the http://www.kenyalaw.org - Page 3/8