Habeas corpus has its origins in the common law where it developed as a writ – it may be described as a prerogative process of securing the liberty of the subject by affording a means of immediate release from unlawful or unjustifiable detention, whether in prison or private…
Because it is a prerogative writ it can only be entertained by the High Court. section 389(1) – HC may whenever it thinks fit direct
a) That any person within the limits of Kenya be brought up before the court to be dealt with according to the law;
b) That any person illegally or improperly detained in public or private custody within those limits to be set at liberty.
c) That any prisoner detained in a prison situated within those limits be brought before the court be there examined as a witne3ss in any matter pending o to be inquired into that court;
d) That any prisoner so detained be brought before a court marital or commissioners acting under the authority of a common the President for trial to be examined touching on any matter pending
Are habeas corpus applications criminal or civil in nature – there is no question to that question Grace Ribingira – the EA Court of appeal observed that any application for the writ of habeas corpus would only be civil in nature, being criminal ..; general understanding is that these procedures should be general in nature.
The court therefore can determine certain applications either by way of civil or criminal, where it is criminal no appeal lies, where it is civil one can appeal – this is especially cases where one has a private citizen can hold another citizen illegally, since this person has no authority to hold another person, the private person since they cannot prosecute a criminal offence, the matter will be civil in nature and if the court were not to allow the application, then one can appeal against the order.
Where the application is not dismissed at the ex parte stage it will proceed to interparte pleadings. It is in the civil process that ex parte applications are found. The court ones seised of the ex parte application can make an order or make an order that the other party be called to reply. If the court decides that this person is being legally held they will dismiss the matter.
The application shall be filed in duplicate and forward to the AG, a date is taken for the return of summons. Once these summons are issued it is expected that the party against whom it has been issued will also file a reply, this is a very documentary process. The reply must also come up with affidavits.
The applicant may meanwhile be released on bail if in detention or police custody, where in custody the court may order their release on terms that the court deems fit. At the hearing the applicant shall begin and the party resisting shall then tender their evidence and then the applicant shall be entitled to reply and thereafter the court shall make a decision. Where the application is successful the court shall make an order requiring the party holding the applicant to release the person. It is the prison or police station that is served with the orders to release the person being held. Where the order is sought that requires the prisoner to reply, the application may be made exparte and requires the applicant to testify.
A prisoner serving lawful sentence and you require them produced to give evidence, the court has discretion to make the order for the person requesting for the prisoner to pay the costs.
In the case where it is a civil prisoner, the application shall be judges chambers by person requiring the prison’s attendance but no order shall be made without hearing the civil prisoner who should decide whether they want to comply with the order, the court will also decide whether the evidence is essential.
Habeas corpus are rarely made to require people in prison to give evidence, what usually happens is that an application is made by the prosecutor for the production of such a person, if before the subordinate court they make an order requiring the production of such a person. A prisoner may be refusing to come to court and a habeas corpus is necessary so it can be served to the prison who then must produce the prisoner.
A judge may order the body of any person alleged to be detained to be produced before him in court.
Due to the kind of violations that the writ is expected to pre-empt the writs are treated with urgency. It is one where one can stop a judge on the street and require of them to attend to the matter. Once can serve it if a person is in danger and the only remedy would be a judicial order requiring the person to be released.