[2022] KEHC 2013 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CRIMINAL REVISION NO. E217 OF 2021.

AARON KIPLAGAT..........................APPLICANT

VERSUS

REPUBLIC....................................RESPONDENT

RULING

1. The Applicant, Aaron Kiplagat, is facing sexual offence charges in Sexual Offence Case No. 102 of 2019: Republic v Aaron Kiplagatat the Principal Magistrate’s Court in Molo. The charges relate to alleged defilement of and committing an indecent act with a girl aged fifteen (15) years. Upon taking plea in the said case, the Applicant was released on bond pending trial. However, on 5th October, 2021, Hon. R. Yator (PM) cancelled the bond granted to the Applicant stating that he was convinced that the applicant had been interfering with the witness who was a minor and that the court considered the best interest of the child.

2. By a Notice of Motion dated 2nd November, 2021 brought under Section 123(3), 362and 364of theCriminal Procedure Code the applicant seeks for review of the ruling delivered on the 5th October, 2021 by Hon. R, Yator (PM) and urges the court to reinstate his bond terms in the trial court.

3. The application is supported by the grounds on the face of it and the Affidavit of the Applicant sworn on even date. He avers that the trial court cancelled his bond terms citing possible interference with the prosecution witness who was a minor and taking consideration of the best interest of a child. He states that there was no evidence that the accused had continued to sexually harass the victim at all. He averred that the only witness remaining to testify was the investigation officer as the victim and the mother had already testified and he therefore wondered how he could possibly interfere with the investigating officer. He averred that he undertook to abide by any conditions that would be imposed to secure his release through reinstatement of his bond terms.

4. The respondent filed a replying affidavit in response to the application. The learned state counsel averred that the trial court upon taking plea in the lower court matter granted the applicant bail and bond terms prior to hearing of the case. That at the commencement of the hearing PW2 the mother to the complainant made an oral application to have the bond terms cancelled as the applicant had continued to engage in indecent acts with the minor by touching her breast. The learned state counsel averred further that on 5th October 2021 the investigating officer mentioned that the matter had been reported to him by the victim’s mother and upon further inquiries from the victim’s grandmother and her school teacher the same was confirmed to be true.

5. He went on to aver that the trial magistrate after listening to the investigating officer and the defence proceeded to cancel the bond. That the court prior to cancellation of the bond made a ruling giving its reasons. He averred that a few witnesses were remaining and thus the status quo should be maintained until the matter is finalized. He concluded that if the court reinstates the bond, this may cause further anguish to the victim and the mother.

6. The court directed that the matter be disposed off by way of written submissions where the applicant complied and the respondent choose to rely on its replying affidavit.

7. The applicant in his submissions dated 12th January 2021, identified one issue for determination that is; whether the honourable court should review the decision of the trial magistrate in Molo CMCR Case No. SO. 102 of 2019- Republic v Aaron Kiplagat and reinstate the bond terms of the accused.

8. The respondent submitted that the trial court suspended his bond yet the alleged continued indecent acts by him were separate and independent offences which require that the normal channel of reporting, investigations and charging the accused should have been followed. He submitted further that the investigations at school and questioning the victim’s grandmother were in relation to the offences which he had been accused of and were pending before court and did not relate to his alleged continued indecency. That no offences had been preferred against the accused person which demonstrates bad faith on the part of the prosecution. He draws the courts attention to the cases of Michael Rotich v Republic [2016] eKLR and Republic v Mbiti Munguti [2020] eKLR.

9. The applicant went on to submit that it was in contravention of Article 49(1)(f)(i) if he was held in custody for offences which may not be preferred against him and which have not been disclosed to him more than 24 hours. He placed reliance on the case of Sudi Oscar Kipchumba v Republic (Through National Cohesion & Integration Commission [2020] eKLR which cited the case of Joseph Thiongo & 17 others v Republic [2017] eKLR. He urged the court to allow his application as the same was merited.

Analysis and Determination

9. Upon carefully considering the record of the trial court together with the parties’ pleadings and written submissions the following issue arise for determination by the court; whether the court should review the decision of the trial magistrate in Molo CMCR Case No. SO. 102 of 2019- Republic v Aaron Kiplagat and reinstate the bond terms of the applicant.

10. Section 362 of the Criminal Procedure Act provides as follows;

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of any such subordinate court”

11. The above section empowers this court to call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding or order recorded and the regularity of any proceedings of any such subordinate court. Further, the actions that this court can take when exercising its revisionary jurisdiction is provided for under Section 364 (1) of the Criminal Procedure Code;

“(1) in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may –

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence: -

(b)in the case of any other order than an order of acquittal, alter or reverse the order.”

12. Looking at the proceedings from the lower court it’s clear that after taking the evidence of PW1 and PW2, the prosecution made an oral application on 21st September 2021 for the cancellation of bond on the ground that the applicant had been interfering with the witness who was a minor. The Investigating officer testified on the same and stated that he had interrogated the minor’s teacher and grandmother who admitted have seen the applicant with the minor together on several times.

13. In the ruling delivered by Hon. R. Yator, it is evident that the learned magistrate took into consideration the sensitivity of the case at hand which involves a minor and whose interests should be safe guarded at all costs. The learned trial magistrate in making her decision relied on the evidence adduced by PW2 on the continued interference with the minor by the applicant and the same was corroborated by the investigating officer evidence. The applicant’s advocate opposed the application but did not adduce any evidence to the contrary. This in my view are compelling reasons for cancellation of the applicants bond.

14. For the above reasons, this court does not find merit in the application and there is nothing to review. Let the matter proceed to its logical end.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 3RD DAY OF MARCH 2022.

H K CHEMITEI.

JUDGE