[2012] KEHC 371 (KLR)
The High Court declined to review the bond terms at this stage because the applicants had not first applied for variation of the bond terms before the trial magistrate. The court emphasized that the supervisory jurisdiction of the High Court should not be invoked prematurely and that applicants must exhaust remedies...
Source-derived case information.
- Citation
- [2012] KEHC 371 (KLR)
- Parties
- Applicant: Bilal Gaitho; Applicant: Swaleh Abdulmajid; Applicant: Swaleh Ali; Applicant: Khubeid Aboud Rogo; Applicant: Juma Musa; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 558 of 2012
- Procedural Posture
- Criminal Revision / Ruling on Application for Review of Bond Terms
- Outcome
- application dismissed
- Judges
- GO Shikwe
- Legal Topics
- Bail and Bond, Criminal Revision, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bilal Gaitho
Applicant
Swaleh Abdulmajid
Applicant
Swaleh Ali
Applicant
Khubeid Aboud Rogo
Applicant
Juma Musa
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Review of Bond Terms
Legal Issues
- 1 Whether the High Court should review the bond terms set by the trial magistrate before the applicants have sought variation before the lower court.
- 2 Whether the applicants have exhausted their right of redress before the trial court prior to seeking review by the High Court.
Ratio Decidendi
The High Court declined to review the bond terms at this stage because the applicants had not first applied for variation of the bond terms before the trial magistrate. The court emphasized that the supervisory jurisdiction of the High Court should not be invoked prematurely and that applicants must exhaust remedies available in the lower court before seeking review. Allowing direct recourse to the High Court without first applying to the trial court would result in an unmanageable number of review applications and undermine the hierarchical structure of the judicial process.
Court Disposition
application dismissed
Orders
- The application for review of bond terms is declined at this stage.
- Applicants are directed to first apply for variation of bond terms before the trial magistrate.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
High Court at Mombasa
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1. BILAL GAITHO
2. SWALEH ABDULMAJID
3. SWALEH ALI
4. KHUBEID ABOUD ROGO
5. JUMA MUSA …………...………………................………………APPLICANTS
VERSUS
REPUBLIC ……………………………………..........….....………..RESPONDENT
(From Original Criminal Case No. 3323 of 2012 of the Chief Magistrate's Court at Mombasa: E. MICHEKA – SRM).
RULING
The applicants were charged in Mombasa Chief Magistrate's Court Criminal Case No. 3323 of 2012 with the offence of preparation to commit a felony contrary to section 308(1) of the Penal Code.
The particulars being that,
“On the 13th day of November, 2012 at around 6:00 a.m. at Mtwapa area within Kilifi County, you were found with intent to plan a grenade attack at Makupa and Central police station respectively in circumstances that indicate that you were intending to commit a felony namely murder”.
The prosecution objected to the release of the Accused persons on bond but the trial magistrate in a well reasoned ruling granted them bond with attendant conditions.
It is those conditions on bond terms that the applicants now seek this Courts intervention in the form of review.
I do concur with Counsel for the defence Mr. Mureithi that under article 165(3) (d) (11) (6) and (7) of the Constitution section 123(3), 362 – 367 of the Criminal Procedure Code the High Court has powers to call for and review orders of all courts and tribunals under it.
Mr. Tanui for the State is also in agreement.
Mr. Mureithi has referred this Court to my ruling – Criminal Revision No. 556 of 2012 MOHAMED RASHID MRAJA VS REPUBLIC and Misc. Criminal ApplicationNo. 505 and 507 of 2007 High Court Nairobi MICHAEL NGA'NG'A KANYI VS REPUBLIC.
I would like to distinguish the two cases with the present one. In the case of Michael Ng'ang'a Kanyi, the applicant had already sought a variation of bond terms in the lower Court unsuccessfully and hence the recourse to High Court.
In this case of Mohamed Rashid Mraja Bond terms had been varied three times and a deadlock had been arrived at.
In the present case there has been no application before the trial magistrate for variation of the terms of the bond. The applicants have not exhausted their rights of redress before the trial Court.
The High Court would be swamped with numerous applications for reviews if there was no insistence that applications be heard first and exhausted before the lower Court.
I, decline to review the order on bond at this stage and do direct that the application be made first before the trial magistrate as soon as possible.
This application is similar to that obtaining in file Revision 559 of 2012. The orders herein, to apply mutatis mutandis to 559 of 2012.
Ruling read and dated this 6th day of December, 2012.
................
M. MUYA
JUDGE
In the presence of:-
Mr. Tanui for State
Mauyonya holding brief Mr. Mureithi
M. MUYA
JUDGE