[2007] KEHC 3777 (KLR)
The court found that the forfeiture of the applicant's bail was procedurally improper because the applicant was not given an opportunity to show cause as required by section 131 of the Criminal Procedure Code. Additionally, the confusion regarding the court date was caused by a clerical error attributable to the...
Source-derived case information.
- Citation
- [2007] KEHC 3777 (KLR)
- Parties
- Applicant: Abdiaziz Haji Mohammed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 673 of 2007
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Revision
- Outcome
- application allowed; impugned orders set aside; bail reinstated; excess bail to be refunded
- Judges
- JB Ojwang
- Legal Topics
- Bail Forfeiture, Revision Jurisdiction, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdiaziz Haji Mohammed
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Revision
Legal Issues
- 1 Whether the forfeiture of the applicant's bail was lawful in light of procedural requirements under the Criminal Procedure Code.
- 2 Whether the applicant was given an opportunity to show cause before forfeiture of bail as required by law.
- 3 Whether the factual confusion regarding the court date justified setting aside the forfeiture order.
Ratio Decidendi
The court found that the forfeiture of the applicant's bail was procedurally improper because the applicant was not given an opportunity to show cause as required by section 131 of the Criminal Procedure Code. Additionally, the confusion regarding the court date was caused by a clerical error attributable to the court itself, and this factual basis was not contested by the respondent. In light of these circumstances, the court held that justice required the reinstatement of the applicant's cash bail and the setting aside of the impugned orders. Any additional bail paid by the applicant was to be refunded.
Court Disposition
application allowed; impugned orders set aside; bail reinstated; excess bail to be refunded
Orders
- The Magistrate’s Court orders of 21st March, 2007 in Criminal Case No. 50 of 2006 are set aside.
- The orders of 22nd May, 2007 are set aside and the applicant’s cash bail of Kshs.100,000 is reinstated.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
(CORAM: OJWANG, J.)
MISC. CRIMINAL APPLICATION NO. 673 OF 2007
ABDIAZIZ HAJI MOHAMMED……………………..……..... APPLICANT
-VERSUS-
REPUBLIC………………………………………………....RESPONDENT
RULING ON REVISION
Learned counsel Mr. Mochache has presented before this Court the applicant’s Chamber Summons filed on 21st September, 2007.
The applicant moved the Court to proceed by virtue of ss.362, 364, 365, 366 and 367 of the Criminal Procedure Code (Cap.75), and to review orders of the Principal Magistrate, in relation to Criminal Case No. 50 of 2006, made on 21st March, 2007 and on 22nd May, 2007.
The question is as regards forfeiture of Kshs.100,000/= which had been paid into Court as bail, to secure the release of the applicant during the pendency of trial.
To the application for revision, the applicant’s supporting affidavit is attached, together with an annexure in the form of the proceedings of the Court which has, in the past, dealt with the question of bail.
Learned counsel, Mr. Mochache, has contested the forfeiture of bail on two main grounds – one factual, and the other legal.
The factual one is that it is the Court itself, in the shape of its clerical officer, which created a mix-up in date-indications on the bond document, and this confused the applicant, rendering it impossible for him to know the correct date for appearance in Court.
Since that point is not contested, I take it that the relevant deposition is factual, and ought to be accepted by this Court.
There is concurrence, too, on the legal point in support of the applicant’s case. Section 131 of the Criminal Procedure Code (Cap.75) requires the Court to call upon an accused person to show cause, before bail is declared forfeit. It is common ground here, as is deponed by the applicant, that the said opportunity was not provided, before the applicant’s bail was forfeited.
On this state of fact, it is clear that justice requires that the Kshs.100,000/= bail which had been paid into Court by the applicant, be reinstated.
Consequently, I hereby allow the application aforementioned, and specifically order as follows:
1. The Magistrate’s Court orders, in relation to Criminal Case No. 50 of 2006, of 21st March, 2007, are set aside.
2. I hereby set aside the orders of 22nd May, 2007 and reinstate the applicant’s cash bail of Kshs.100,000/=.
3. Consequently, I hereby order that any fresh bail that may have been paid by the applicant, over and above the original cash bail of Kshs.100,000/=, shall be refunded to the applicant.
Orders accordingly.
DATED and DELIVERED at Nairobi this 30th day of October, 2007.
J.B. OJWANG
JUDGE
Coram: Ojwang, J.
Court Clerk: Mr. Huka
For the Applicant: Mr. Mochache
For the Respondent: Mr. Makura