[2022] KEHC 13895 (KLR)

Abinya v Republic (Miscellaneous Criminal Application E090 of 2022) [2022] KEHC 13895 (KLR) (11 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13895 (KLR)

Republic of Kenya

In the High Court at Siaya

Miscellaneous Criminal Application E090 of 2022

RE Aburili, J

October 11, 2022

Between

Dennis Ooko Abinya

Applicant

and

Republic

Respondent

(Being an Application arising from Chief Magistrate’s Court at Siaya in Siaya Sexual Offence Case No. 49 of 2020)

Ruling

1. By a notice of motion dated August 16, 2022, the applicant herein Dennis OOko Abinya through the firm of Gideon Odongo advocate seeks orders that the applicant be admitted to bond and that the court be pleased to call for, examine and review the decision and orders of the subordinate court in Siaya Sexual Offence case No 49/2020 Republic v Kevin Oduor Onyango with a view to quashing the said decision and releasing the applicant.

2. In the alternative, that the applicant be given timelines within which to realize the sum of Kshs 400,000/= as ordered by the court; and that the court be pleased to grant such other orders to meet the ends of justice.

3. The application is supported by the affidavit of the applicant sworn on August 16, 2022 by the applicant wherein the applicant deposes that he was jailed for six months vide the ruling of the Hon Principal Magistrate made on August 4, 2022 for failure to forfeit a sum of Kshs 400,000/= each. He asserts that he was never given an opportunity to realize the security for purposes of forfeiture, in the even that he totally fails to produce the accused person who was at large, in SO case No 49/2020. He wants to be given a chance to raise the amount of bond and that his detention is illegal.

4. When the matter was brought to my attention on September 20, 2022, I gave directions that the subject SO file No 49/2020 be availed to this court forthwith for perusal and consideration.

5. Regrettably, I have learnt from the criminal registry court assistant incharge that although the file was released on October 4, 2022, the court assistant for the High Court misfiled it and instead he availed to my chambers on October 6, 2022 a different file which is on appeal and due for mention on October 17, 2022 hence the delay herein.

6. I have now received the lower court file and perused it. The question I must answer is whether there is any illegality or irregularity in the order made on August 4, 2022 by the trial court to warrant correction by way of revision by this court as deposed by the applicant.

7. The procedure to be followed in forfeiture of bond or recognizance is provided for under section 131 of the Criminal Procedure Code which stipulates that:(1)Whenever it is proved to the satisfaction of a court by which a recognizance under this code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.(2)If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.(3)A warrant may be executed within the local limits of the jurisdiction of the court which issued it; and it shall authorize the attachment and sale of the movable property belonging to the person without those limits, when endorsed by a magistrate within the local limits of whose jurisdiction the property is found.(4)If the penalty is not paid and cannot be recovered by attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term not exceeding six months.(5)The court may remit a portion of the penalty mentioned and enforce payment in part only.(6)When a person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his recognizance, a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties, and, if the certified copy is so used, the court shall presume that the offence was committed by him unless the contrary is proved.”

8. In short, under section 131 of the Criminal Procedure Code, the court has 2 options:a.to call upon any person bound by a recognizance to pay the penalty thereof orb.call upon the person to show cause why the recognizance should not be paid.

9. Under the said section, where the surety fails to pay the penalty or to forfeit bond, the court is under a legal duty to give the surety an opportunity to show cause why the security given to court for bond cannot be attached and sold to recover the bond money (see 131(2) of the Criminal Procedure Code).

10. The trial court in this case exercised the discretion to order that since the sureties had not paid Kshs 400,000/= bond money forfeited to the state, they should serve jail term of six months each.

11. In my humble view, my reading of section 131(1) of the Criminal Procedure Codeand the use of the word ‘may’ gives the court power and discretion to exercise the power to jail a defaulting surety only as a last resort if forfeiture could not be realized from attachment of the security or property given as security for bond. In other words, the trial court should have given the sureties an opportunity to show cause why the security could not be forfeited by way of attachment and subsequent sale.

12. In my view, the process adopted, for realization of or enforcement of the penalty for failure to pay the bond money as forfeited was premature, irregular, unprocedural and in the circumstances of this case, illegal.

13. I have previously in the case of Republic v Walter Magamu & Solomon Chepseba Chemagosi HCR 17/2017 stated the procedure to be followed in forfeiture of security deposited in court as bail/bond.(See paragraph 48 of the ruling delivered on May 17, 2022 copy of ruling attached hereto) for perusal by the trial magistrate in this matter.

14. In this case, I find that the procedure for forfeiture of security for bond was followed but that the ultimate jail term of 6 months was premature as the appellant was not given the opportunity to show cause why the security cannot be attached and sold to realize the bond given.

15. For the above reasons, I quash the order of August 4, 2022 committing both sureties Dennis Ooko Abinya and Charles Ochieng Pambo to six months in jail and set it aside.

16. The two sureties Dennis Ooko Abinya And Charles Ochieng Pambo shall forthwith be released from custody unless otherwise lawfully held.

17. The trial court is however not prohibited from proceeding with the procedure laid down in law for forfeiture of security given by the sureties for bond issued to the accused person Kevin Oduor Onyango in Siaya CM SO Case No 49/2022.

18. I so order. File closed.

19. The lower court file to be returned forthwith.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 11TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE