Kenya Judgment

High Court · High Court at Kabarnet

Benson Kiprop Cheburet v Republic [2017] KEHC 4027 (KLR)

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Research organized from the available case record

Source document

01

Holding and result

The High Court found that the trial court erred in both suspending and cancelling the accused's bail and bond terms without sufficient basis. The accused was not present when the ruling on case to answer was delivered, and subsequent proceedings, including the issuance of a warrant of arrest and cancellation of bond, occurred without proper notice or evidence that the accused had willfully absconded. The court emphasized that fairness and due process require that adverse orders affecting an accused's liberty be made only after proper notice and opportunity to be heard. As such, the High Court reinstated the applicant's bail on the original terms and ordered his immediate release from custody.

Court disposition

application allowed; bail reinstated

Orders

  • The bail is reinstated on the same terms and security as previously granted and provided by the accused. The accused will be released from custody forthwith.
  • The trial court file and original certified copy of the ruling to be returned to Eldama Ravine Law Courts for mention on 28/7/2017.

02

Material facts

Parties

Benson Kiprop Cheburet

Applicant Counsel: M/S Kiptoon & Co. Advocates

Republic

Respondent Counsel: Ms. Macharia, Ass. O.D.P.P

03

Procedural history

  1. Posture

    Miscellaneous Criminal Application / Ruling on Application to Reinstate Bail

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that the ruling on case to answer was delivered in his absence and that subsequent warrants and bond cancellation orders were made without proper notice or justification, as the accused had not absconded.
Respondent
The respondent did not provide evidence that the accused had been properly notified or that he had deliberately absconded; the prosecution itself noted the absence of a hearing date.

05

Court’s reasoning

  1. 01

    Criminal Procedure Code (Cap 75), general principles of fair trial and bail

    A court must not find an accused to have absconded or cancel bail/bond unless there is clear evidence of willful absence and proper notice to the accused.

  2. 02

    Article 50, Constitution of Kenya, 2010

    Orders affecting liberty, such as cancellation of bail or bond, must be made in accordance with due process and fairness.

06

Ratio, limits and disposition

Ratio decidendi

The High Court found that the trial court erred in both suspending and cancelling the accused's bail and bond terms without sufficient basis. The accused was not present when the ruling on case to answer was delivered, and subsequent proceedings, including the issuance of a warrant of arrest and cancellation of bond, occurred without proper notice or evidence that the accused had willfully absconded. The court emphasized that fairness and due process require that adverse orders affecting an accused's liberty be made only after proper notice and opportunity to be heard. As such, the High Court reinstated the applicant's bail on the original terms and ordered his immediate release from custody.

Obiter and limits

  • The absence of a hearing date and lack of notice to the accused undermined the fairness of the trial process.
  • It is improper for a trial court to make adverse findings against an accused in their absence without clear evidence of willful default.

Court disposition

application allowed; bail reinstated

  • The bail is reinstated on the same terms and security as previously granted and provided by the accused. The accused will be released from custody forthwith.
  • The trial court file and original certified copy of the ruling to be returned to Eldama Ravine Law Courts for mention on 28/7/2017.

Source and reliance status

High Court

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Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 4027 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KABARNET

MISCLENEOUS CRIMINAL APPLICATION NO 66 OF 2017

BENSON KIPROP CHEBURET………………………………………..APPLICANT

VERSES

REPUBLIC………………………………………………………………..RESPONDENT

RULING

I have perused the court file in this matter. I have noted that the ruling of the court oncase to answer scheduled for 5/12/2016 was not delivered as set but on 14/2/2017 in the absence of the accused. I have also note that the warrant of arrest was issued on 19/4/2017 when the file was brought up in the absence of the accused withoutany notice granted to the prosecution itself observed that the case had no hearing date.

It cannot be correct to find that the accused had absconded as ruled by the court on 29/6/2017 and 14/7/2017 when the issue of the accused’s bond term was considered.

I consider therefore that the trial court was wrong and unfair in suspending the bailfor the accused on 29/6/2017 and subsequently cancelling the bond terms on 14/7/2017.

Orders:

1. Accordingly, the bail is reinstated on the same terms and security as previously granted and provided by the accused. The accused will therefore be releasedfrom custody forthwith.

2. The trial court file and original certified copy of the ruling of the application to be returned to Eldama Ravine Law Courts for Mention on 28/7/2017 as scheduled.

DATED, SIGNED AND DELIVERED AT KABARNET THIS 25TH DAY OF JULY, 2017.

……………………..

EDWARD MURIITHI

JUDGE

Appearance

1. M/S Kiptoon & Co. Advocates

2. Ms. Macharia, Ass. O.D.P.P

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Procedure Code (Cap 75)

Legislation

Legislation referenced in the available case record.

Constitution of Kenya, 2010

Legislation

Legislation referenced in the available case record.

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