[2023] KEHC 27315 (KLR)

Ayisi v Republic (Miscellaneous Criminal Application E053 of 2023) [2023] KEHC 27315 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 27315 (KLR)

Republic of Kenya

In the High Court at Kajiado

Miscellaneous Criminal Application E053 of 2023

SN Mutuku, J

November 21, 2023

Between

Eugene Likabu Ayisi

Applicant

and

Republic

Respondent

Ruling

1. The Applicants filed an application through a Notice of Motion dated 29th September, 2023 under Articles 40(1)(h), 50(2)(a), 159(1) and (2) and 258(1) of the Constitution of Kenya and under sections 124, 125,126,135(1) (2), 362 and 364 of the Criminal procedure code for orders that:i.Spentii.That pending the hearing and determination of this application this honourable court be pleased to order that all the matters in which the applicant is charged before the Chief Magistrates Court Ngong to wit but not limited to MCCR/E1139/E1141/E1142/E1152 and E1182/2023 be given the same consolidated and favorable bail and bond term with similar surety in one file which would then apply across other files.iii.That at the hearing and determining of this application this Honourable Court be pleased to order that all the matters in which the applicant is charged before the Chief Magistrate’s Court Ngong to wit but not limited to MCCR/E1139/E1141/E1142/E1152 and E1182/2023 be given the same consolidated and favorable bail and bond term with similar surety in one file which would then apply across all the other files.iv.That this Honourable Court be pleased to vary/Review and revise the orders of the lower court on bail and bond terms for the Applicant made on 19/09/2023 and any other orders thereto and be pleased to grant the Applicant/Accused person favorable and or reasonable bail and bond terms.v.That at the Hearing and determining of this application this Honourable court be pleased to order that all the unlawfully procured evidence so procured and solicited by the Respondent herein against the applicant herein after his arrest and his unlawful incarceration and or any other period thereafter be so ordered to be inadmissible and not to be so used 9during trial against the accused person herein without the prior independent investigation and audit by DCI headquarters Kiambu Road and investigation report by IPOA be so produced on the same.vi.That this Honourable Court be pleased to issue stay of proceedings in the Chief Magistrates Court Ngong Criminal case against the applicant herein to wit but not limited to MCCR/E1139/E1141/E1142/E1152 and E1182/2023 Republic -vs- Eugene Likabu Ayisi.vii.That the Honourable Court be pleased to issue an order that the criminal charges facing the accused person herein be so consolidated on one charge sheet and or all the said charges be heard by one trial Court and or at a different and neutral court station within Kajiado County.viii.That the court does make an order that the property seized from the accused persons herein to wit his two mobile phones, Military ID card, work uniforms and bag be so returned to the accused persons.ix.That the cost of this Application be provided for.

2. The Application was supported by an Affidavit sworn by Eugene Likabi Ayisi on 29th September, 2023. He sought review for orders given on 19th September 2023 denying him bail. He stated that he was arraigned in court on 4th September, 2023 where through a Misc. Application MCCR MISC/E342/2023 the police unlawfully and without any charge sheet held him in custody for 14 days pending further investigations; that he was charged in different charge sheets in the following matters MCCR/E1139/E1141/E1142/E1152 and E1182/2023; that at the time of arrest he was booked with the offence of resisting arrest and that he was never informed of the accusation of robbery with violence.

3. He further argued that the lower court denied him bail for reasons that as a military officer he has skills in handling a fire arm and therefore a threat to the victims; that this was not a compelling reason to deny him bail as the witnesses could be put under witness protection; that as an officer of the Kenya Defence Forces he has a fixed abode and hence not a flight risk; that he would not abscond from court if granted bail as he has a job that he cherishes and would not want to lose the same; that he is the sole breadwinner of his family and he therefore prays for this court to vary/review the earlier orders and grant him reasonable bail and bond terms; that it is his constitutional right to be admitted to reasonable bail and bond terms and that the application has been made timeously and without delay.

4. The Respondent filed its Replying Affidavit dated 30th October, 2023 in which it is averred that the accused was arrested on 3rd September, 2023 in connection to a series of robbery with violence cases reported at Ngong Police Station, Ole Polos Police Post and Kibiku Police Post vide various OB Numbers; that it is opposed to the grant of orders for consolidation as the cases have different complainants, different witnesses and occurred at different times and therefore the offences cannot be charged together in the same charge as it would be contrary to Section 135(1) of the Criminal Procedure Code.

5. It was the argument of the Respondent that should the court grant the orders for review, the order of one similar surety in all the cases should not be granted as the cases are different; that no reasonable ground has been adduced by the Applicant to grant him orders for stay; that if there was any violation of the rights of the Applicant under Article 49, then the right forum for the Applicant would be the Constitutional Court; that the grounds as prayed for in prayer 2,3,5,6,7,8 and 9 of the application should be dismissed.

6. The Investigating officer through his Replying Affidavit dated 30th October, 2023 averred that the Applicant was arrested for the offence of stealing and not resisting arrest as alleged; that he was arrested on 3rd September, 2023 within Ngong area while attempting to escape from a scene where he had stolen a mobile phone; that there was no violation of arrested person’s right as due process was followed; that after his arrest they applied for custodial orders of 14 days pending investigations which was granted by the SPM’S court in Ngong MCCR MISC/ E342/2023.

7. It was their case that the Applicant never complained of mistreatment while at the police cell and that he was given the right to contact his family; that the search carried out without a warrant was necessitated by the need to acquire the suspected firearm which was believed to be in possession of the accused; that the Applicant’s family member, a KDF officer on 22nd September, 2023 called a witness in case MCCR/E1141/2023 and ordered her to withdraw the case; that it was for this reason that he made an application for denial of bail.

8. He further deposed that no evidence was obtained illegally as alleged; that no violations were committed as alleged in ground 15 and 16 of the Application; that after the arrest a signal was dispatched from Ngong Police station informing of arrest of the KDF officer (the accused); that further a call was made to Military Police confirming the same; that a letter Ref. No DCI/SEC/4/4/1/VOL.VI/158 was sent to the Military Police, Kenya Defence Headquarters, informing them of the arrest and confirmation that he was a KDF officer; that a reply confirmation was received that he was indeed a KDF Officer vide letter Ref. No. DHQ/STATS/104/RECS annexed as (CK-1) (The said annexure is however not attached.)

9. The application was argued orally in court on 7th November, 2023.

Analysis and Determination 10. I have considered the application, the affidavits and the arguments by the parties herein. The issue for determination is whether the application by the Applicant has merit.

11. This Honourable Court heard this matter and gave a ruling on 26th October, 2023 where it stated at paragraph 13 that:“To my mind, it would be better to have the entire application argued fully before I can make my determination on the issues raised in it. To avoid prejudicing any party, I decline to grant either prayer 3 or 4 of the application at this stage. I will allow parties to fully canvass all the issues raised in the application before I can deliver a comprehensive ruling on the matter.”

12. Section 135(1) of the Criminal Procedure Code provides that:(1)Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts, or form or are part of a series of offences of the same or a similar character.

13. Although I am alive to the reasoning of the Supreme Court of Kenya, in Law Society of Kenya v The Centre for Human Rights and Democracy (2013), that “The essence of consolidation is to facilitate the efficient and expeditious disposal of disputes and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it”, it is my view that the circumstances of the matters subject of this application can be distinguished in that consolidating the charges may not be in the best interest of all the parties involved.

14. The reasoning of the Respondent is that the cases have different complainants, different witnesses and occurred at different times. That therefore the offences cannot be charged together in the same charge as it would be contrary to the above-mentioned section. I have looked at the charge sheets in all the five matters that the accused has been charged under. In Ngong Criminal Case No E1139 of 2023 he is charged with stealing a mobile phone contrary to section 268(1) as read section 275 of the Penal code. In the other 4 matters the accused was charged with robbery with violence alleged to have been committed on different dates and at different locations. It is therefore clear to me that the offences are alleged to have occurred at different times and the complainants are different. The witnesses are likely to be different in each case.

15. On whether this court should vary/review the bond terms I have considered Article 165 (6) and (7) of the Constitution which provides: -(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6) and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

16. Further, Section 362 of the Criminal Procedure Code provides: -The High Court may call 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.

17. The provisions of Section 364(1) of the Criminal Procedure Code are also relevant in that they give powers to the High Court as follows: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 his 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 other than an order of acquittal alter or reverse the order.(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence.

18. The revisionary jurisdiction of the High Court was discussed by Odunga J, as he then was, in a persuasive decision of Joseph Nduvi Mbuvi vs Republic [2019] eKLR as follows:“In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings, to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”

19. Courts have determined that the procedure to be followed in applications for review is that the applicant should first seek review of the bail and bond terms from the trial court before seeking redress in a higher court. This position was articulated by the court in Harish Mawjee & another vs. Republic [2020] eKLR in Criminal Revision case no 545 of 2020, as follows:-“There are certain overarching principles that govern the administration of bail and bond by Courts. First of all, courts have sole discretion to give determinate bond terms and they can impose a combination of terms including supervision of accused released on bail if found necessary. Secondly, bond terms should not be arbitrary, but the court must consider the relevant factors affecting issuance of bond including penalty of offence and the accused’s ability to meet the bond terms. Thirdly, the bond terms should not be excessive or unreasonable. Fourthly, an accused has right to seek review of bond terms from trial court or high court or appeal..…… an accused can apply for review of bond terms given by the trial court. The application should be made before the trial court which granted the bond. If, however the accused is still aggrieved by the decision of the trial court, he can still approach the higher court for relief.”

20. To grant or deny bail is a discretionary power of the court. That being said however the Judiciary Bail and Bond Policy Guidelines of 2015 have provided parameters to assist the court in exercising discretion judiciously. With respect to these guidelines, they require that the court in granting bail should consider the seriousness of the offence, the strength of the case, interference of witnesses, failure of the accused to attend or where the accused is charged with another case, the need to protect the victim(s), the security and safety of the accused, the likelihood of absconding from the jurisdiction of the court and other factors which must be weighed by the court in the interest of justice. Such an exercise of discretion requires a wholistic approach and the court must, in close circumspection, take to account the circumstances of the case and the accused person individually.

21. In our instant case the trial court in its ruling delivered on 19th September, 2023 denied to grant bail or bond. The court stated that there were compelling reasons advanced by the prosecution to warrant denial of bond terms.

22. I have considered this matter carefully. I have noted that the ruling dated 19th September 2023 denying bail/bond to the accused person applied to all the files except Criminal Case No. E1182 of 2023 where the issue of bond has not been dealt with. In exercise of the powers granted under Section 364 (1) (b) of the Criminal Procedure Code, I hereby make the following orders in this Revision:i.Prayers 2 and 3 of the Notice of Motion dated 29th September 2023 seeking to consolidate all the criminal charges facing the Applicant in the five matters and the same bond terms and similar surety in all the matters are declined.ii.The orders granted on 19th September 2023 denying the Applicant bond in four of the matters save Criminal Case No. E1182 of 2023 are hereby reviewed and set aside.iii.In view of Order (ii) above, this court admits the Applicant to bail/bond of Kenay Shillings Five Hundred Thousand (Kshs 500,000) in each of the five cases facing him with one different surety of that amount in each file.iv.The Applicant and/or any representative of his shall not contact witnesses or do anything that may compromise the fair trial or prejudice the complainants in these matters. He shall abide by all the conditions of bail/bond and attend trial in all the five matters without fail.v.Prayers 5, 7 and 8 of the Application are declined. These prayers are better argued before the trial court to avoid prejudicing the trial.vi.This court declines to stay the proceedings in the five criminal cases at Ngong. The trials should commence and proceed according to the law and procedure.vii.Each party shall bear own costs.viii.The Deputy Registrar of this Court is directed to urgently and expeditiously, remit the five files in this matter to the Principal Magistrate Ngong to give directions how these matters shall proceed and process the bond granted herein.

23. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 21ST DAY OF NOVEMBER 2023. S. N. MUTUKUJUDGE