[2018] KEHC 9226 (KLR)
The court found that the order of forfeiture of the applicant's cash bail was made without due regard to the prior agreement between the parties for settlement through ADR and the previous proceedings. The forfeiture not only contravened the agreed process of reconciliation but also impeded the applicant's ability...
Source-derived case information.
- Citation
- [2018] KEHC 9226 (KLR)
- Parties
- Applicant: Aron Obudho Ochieng; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 659 of 2018
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- orders of forfeiture set aside; original cash bail reinstated; matter to proceed for mention
- Legal Topics
- Bail Forfeiture, Alternative Dispute Resolution, Restitution, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Aron Obudho Ochieng
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the order of forfeiture of cash bail was proper in light of the prior agreement between the parties regarding settlement through ADR.
- 2 Whether the court had jurisdiction to set aside the order of forfeiture under Sections 362 and 364 of the Criminal Procedure Code.
Ratio Decidendi
The court found that the order of forfeiture of the applicant's cash bail was made without due regard to the prior agreement between the parties for settlement through ADR and the previous proceedings. The forfeiture not only contravened the agreed process of reconciliation but also impeded the applicant's ability to raise the necessary funds for restitution. The court held that it had the power under Sections 362 and 364 of the Criminal Procedure Code to correct the error and set aside the improper order. Accordingly, the court reinstated the original cash bail and set aside the enhanced bail terms and forfeiture order to facilitate the agreed settlement process.
Court Disposition
orders of forfeiture set aside; original cash bail reinstated; matter to proceed for mention
Orders
- The orders of 22/5/2018 ordering forfeiture of the applicant’s cash bail of Kshs. 300,000/= are set aside.
- The applicant is re-admitted to a cash bail of Kshs. 300,000/=.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL REVISION NO. 659 OF 2018
ARON OBUDHO OCHIENG..............................................APPLICANT
VERSUS
REPUBLIC........................................................................RESPONDENT
RULING
1. I have had the advantage of reading though both the original trial court record and the typed proceedings. From the proceedings of 6/4/2018, parties clearly agreed on the steps that would be undertaken in the process of ADR.
2. To be precise, the cash bail in the sum of Kshs. 700,000/= was to be forfeited to the complainant as the final installment after Kshs. 700,000/= had been paid. The settlement was for Kshs. 1,000,000/. This process took a sharp turn after the applicant lost representation and a misunderstanding cropped up. Also, when the court made an order for forfeiture of the cash bail on 22/5/2018, it had lost sight of the previous proceedings and the agreement between the parties enunciated above. The forfeiture of the cash bail did not only offend the agreed process of reconciliation but also made it impossible for the Applicant to hustle for the much needed cash for restitution. He cannot look for the money when his freedom is curtailed. Even enhancing the bail terms is tantamount to the spirit for which affordable bail was granted in the first instance.
3. I therefore find that the record of proceedings is tainted with an incorrectness which this court under Section 362 and 364 of the Criminal Procedure code has powers to correct.
4. In sum, I set aside the orders of 22/5/218, ordering the forfeiture of the applicant’s cash bail of Kshs. 300,000/= and consequently re-admitting him to a cash bail of kshs. 550,000/=. I substitute it with an order that the cash bail of Kshs. 300,000/= is reinstated. Matter shall be mentioned on 5/6/2018 to confirm the progress in Alternative Dispute Resolution or any further directions. The court further orders that cash bail of Kshs. 550,000/= is set aside.
5. It is so ordered.
DATED and DELIVERED this 29th day of May, 2018.
G.W. NGENYE-MACHARIA
JUDGE