[2009] KEHC 2859 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI

Criminal Revision 4 of 2008

BIRIA CHARO & 3 OTHERS...........................................APPELLANTS

VERSUS

REPUBLIC.......................................................................RESPONDENT

R U L I N G

By a ruling dated 20th November, 2007, the Principal Magistrate Malindi, Mr. Joshua Kiarie, raises the following issues for interpretation by the High Court.

(1) Is accused person charged with a capital offence of robbery entitled to bail?

(2)Can a court of law grant bail to an accused person charged with the offence of robbery with violence in view of the provisions of sections 72(2) of the Constitution of the Republic of Kenya as read together with section 123(1) of the Criminal Procedure Code vis-à-vis the fundamental rights of the individual as provided for in the Constitution and the International Human Rights conventions that the Republic of Kenya is a party to?

On behalf of the applicant, it was argued that once trial has commenced, a presiding magistrate has a right to release an accused on bail or not.

That an application for bail is procedural and is meant to serve justice to the accused. The power to grant bail is thus inherent and hence cannot be taken away from the court by a statute or by the Constitution.

Against that background, I was urged to find for the applicant who had been charged with capital offence of robbery under section 296(2) of the Penal Code. Counsel argued that in terms of the provisions of section 72 (2) of the Constitution if a person arrested is not brought to court within a reasonable time then he should be released on bail unless charged with offence that is punishable by death.

In the alternative, it was argued that section 60 of the Constitution of Kenya established the High Court with unlimited civil and criminal jurisdiction. That section 3 of the Constitution fortifies the supremacy of Kenya Constitution. Section 70 of the Constitution emphasizes, life, liberty and security of the person by way of protection of the law.

Against that background section 72(5), it was contended, is in conflict with other sections of the Constitution, namely, sections 70A, section 74, section 77.

It was argued by the respondent that section 72(2) of the Constitution, that counsel is referring to, deals with fundamental rights which require a substantive motion under section 84 of the Constitution. As the applicant came to court under section 67 of the Constitution, which deals with interpretation of the provisions of the Constitution, the application is misplaced.

In any event section 123(1) of the Criminal Procedure Code emanates from the provision of section 72(5) of the Constitution. In which case a person who is charged with a capital offence that attracts penalty of death cannot be bailed out at any stage of the proceedings.

Last but not least it was argued that the High Court is established by the Constitution and is bound by the provisions of the Constitution. The constitution itself forbids the granting of bail for persons charged, inter-alia, with the offence of treason, murder and robbery with violence.

In the instant case the trial magistrate cannot grant bail on a charge of robbery with violence unless the charge has been reduced to simple robbery.

I am grateful to both counsel for their in put in law. I have taken the same into consideration though I have not quoted the same in extenso.

Having done so, I share the view that the procedure adopted by counsel for the applicant is erroneous. It appears to me that the applicant’s case is that his fundamental rights have been violated by refusing to grant him bail. If that be the case then the proper procedure should have been by a substantive motion in terms of the provisions of section 84 of the Constitution of the Republic of Kenya.

That being my view of the matter I now answer the questions raised thus:

One, an accused person charged with a capital offence of robbery is not entitled to bail.

Two, a court of law cannot grant bail to an accused person charged with the offence of robbery with violence in view of the provisions of sections 72(2) of the Constitution of the Republic of Kenya as read together with section 123(1) of the Criminal Procedure Code vis-à-vis the fundamental rights of the individual as provided for in the Constitution and the International Human Rights Conventions that the Republic of Kenya is a party to.

For those reasons the file be and is hereby forwarded to the Principal Magistrate to continue hearing the case as enjoined by law.

Dated and delivered at Malindi this 4th day of May 2009.

N.R.O. OMBIJA

JUDGE

Mr Madialo for Applicants

Mr Ogoti for Republic