R.M v ATTORNEY GENERAL & 4 others [2010] eKLR petitioner has not given any reason for this failure. Be that as it may, the petitioner’s alleged violation of his fundamental rights is anchored on the fact that he was detained at Kitui Police station during the pendency of his criminal trial. He contends that the said detention was illegal and unconstitutional. 150. The petitioner having been an accused person facing a charge of robbery with violence which is punishable by death, was not under Section 72(5) of the Constitution entitled to bail during the pendency of the criminal trial. The petitioner ought to have been remanded in custody during the pendency of the criminal trial. Indeed, it is not disputed that the petitioner was remanded in prison custody at Kitui Police Station pursuant to a court order. The order was made taking into account the petitioner’s intersex status, and the fact that there was nowhere appropriate to remand the petitioner during the pendency of the criminal trial. The detention of the petitioner at the police station was therefore legal as it was done pursuant to a court order which was necessitated by the circumstances of the petitioner. Moreover the petitioner’s fundamental right to liberty during the pendency of the criminal trial was limited under section 72(1)(e) and(5) of the Constitution by the fact that he was facing a capital charge. 151. The petitioner was tried and convicted of the criminal offence by a court of competent jurisdiction. There is no evidence that the petitioner was not afforded a fair hearing, or that the court was not independent or impartial. No reason has been given vitiating the petitioner’s trial other than the alleged violation of his right to liberty because he was detained at Kitui Police Station. But even assuming for the sake of argument, that the petitioner was illegally detained, or that he has been discriminated against, such violation of his rights would not vitiate his criminal trial, but would only give the petitioner a cause of action for damages. We are fortified in this view by the position recently taken by the Court of Appeal in Julius Kamau Mbugua vs Republic (2010) eKLR as follows: “Lastly, had we found that the extra judicial detention was unlawful and that it is related to the trial, nevertheless, we would still consider the acquittal or discharge as a disproportionate, inappropriate and draconian remedy seeing that the public security would be compromised. If by the time an accused person makes an application to the court, the right has already been breached, and the right can no longer be enjoyed, secured or enforced, as is invariably the case, then, the only appropriate remedy under Section 84(1) would be an order for compensation for such breach. The rationale for prescribing monetary compensation in Section 72(6) was that the person having already been unlawfully arrested or detained such unlawful arrest or detention cannot be undone and hence the breach can only be vindicated by damages.” 152. Consequently, we reject the petitioner’s contention that his rights were violated during the criminal trial in Kitui Court. We find no just cause to interfere with the petitioner’s conviction of the criminal offence either due to his intersex status or alleged violation of his constitutional rights and reject his pleas for acquittal. Whether the provisions of The Prisons Act and Prisons Rules are discriminatory against the petitioner. 153. The petitioner identified Sections 28, 30, 31 and 38 of The Prisons Act, as well as Rules 25(1), 103, and 104 of The Prisons Rules, as resulting in the violation of his fundamental rights. We have perused these provisions. Section 28 of The Prisons Act provides for a woman prison officer to take care of female prisoners. Section 30 of The Prisons Act, provides for every prisoner to be in lawful custody of the officer in charge of the prisons, while Section 38 of The Prisons Act provides for removal of prisoners http://www.kenyalaw.org - Page 39/45