[2022] KEHC 11028 (KLR)

Black Jr v Republic (Criminal Case E028 of 2022) [2022] KEHC 11028 (KLR) (Crim) (17 March 2022) (Ruling)

Neutral citation: [2022] KEHC 11028 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Criminal

Criminal Case E028 of 2022

JM Bwonwong'a, J

March 17, 2022

Between

Joseph William Black Jr

Applicant

and

Republic

Respondent

Ruling

1. Pursuant to the provisions of articles 40 (1) (h), 50 (2) (a), 159 (1) & (2) and 258 (1) of the Constitution of Kenya and sections 124, 125, 126, 362 and 364 of the Criminal Procedure Code and all enabling provisions of the law, the applicant has sought a review of Milimani Chief Magistrate’s Court order dated 24th January 2022 which denied him bail/bond.

2. The review is sought with a view of being granted bail/bond on reasonable and affordable terms.

3. The applicant’s application is supported by grounds set out on the face of the notice of motion dated 2nd February 2022 and is also supported by an affidavit sworn by the applicant on the same date.

4. The major grounds in support of the application are as follows. The applicant was arrested on 22nd January, 2022 at Jomo Kenyatta International Airport while he was travelling to the United States of America. He is a citizen of that country. That on 24th January, 2022 he was charged in court with the offence of being in possession of child pornography in a computer contrary to section 24(1) (d) of the Computer Misuse and Crimes ActNo. 5 of 2018. His application for bail was denied and the magistrate court set the case down for case management conference. Further, no reasons were advanced for the denial of the bail.

5. He avers that he is not a flight risk and has been a resident of Kenya for the past five years and teaches theology at Bishop Makarios Seminary in Riruta and St. Paul’s University in Limuru. Furthermore, he was travelling to the United States after receiving summons to face the same charges he is now facing in Kenya.

6. He contends that he has co-operated with law enforcement agencies since the probe into his conduct which began in 2021. He urges this court to review his denial of bail and grant him bail at reasonable terms in the interest of justice. He has also urged the court to take into account the presumption of his innocence until proven guilty in terms of article 50 (2) (a) of the Constitution of Kenya.

7. The applicant has stated that he is prepared to abide by any reasonable bail terms that the court may impose.

The submissions of the applicant 8. The applicant through his counsel (Messrs Kyalo and Associates Advocates) filed written submissions in support of the application. They submitted that this court has jurisdiction to correct any errors and or mistakes made by the trial court in the course of the trial. They further submitted that the offence with which the applicant is charged with is bailable and that the allegation made by the investigating officer are unfounded. They cited Alex Onyango Otieno v DPP & Another [2015] e-KLR and R vs Joseph Wanjohi and Another[2018] e-KLR, in which the courts observed that all offences in Kenya are bailable unless there compelling reasons to deny the grant of bail to an accused person.

9. Counsel also cited the case of Mohamed Abisher and Another v DPP [2020] e-KLR, where the court defined compelling reasons to denote reasons that are forceful and convincing as to make the court feel very strongly against the grant of bail/bond. In conclusion, they submitted that there were no compelling reasons advanced by the prosecution for the denial of bail

The case for the respondent 10. The respondent filed a 12 paragraphs replying affidavit through the investigating police officer (Wycliffe Jefwa) in opposition to the application.

11. He has deposed to the following major averments. He is the investigating officer in an ongoing investigation in respect of case against the accused/applicant. That the applicant was arrested while trying to flee Kenya and was scheduled to board an Ethiopian Airways flight en route to Addis Ababa. This is despite the fact that he was under investigation for the offences of child pornography that he has now been charged with.

12. He has averred that there is a similar investigation in the state of South Carolina in the United States of America and that granting him bail would create an incentive for him to abscond and evade justice. Further that the Kenyan borders are very porous and the applicant has on several occasions accessed Kenya through Namanga and Busia entry border points as a pedestrian.

13. He has further averred that the applicant resides in a guest house in Bishop Makarios Seminary in Riruta Satelite, where there is a Primary School in the same compound and owing to the charges against him, he may continue to interact with the children if released on bail.

14. Additionally, he has averred that although the offences the applicant is charged with are bailable, the grant of bail is not absolute but is a matter for the discretion of the court after considering the opposition by the prosecution.

15. He has urged the court to deny the applicant bail/bond until the case against him is heard and determined.

The submissions of the respondent 16. The respondent has filed written submission in support of their case. The respondent submits that the applicant did not make an application for bail before the trial Court and therefore this is a fresh application for bail and should be considered as such.

17. The respondent has also submitted that the applicant has not demonstrated that he can avail credible sureties who can ensure his attendance in court. They have also submitted that the offences the accused is charged with are serious and he is likely to interfere with the investigations if released on bail/bond.

18. Counsel for the respondent urged the court to exercise its discretion in making the decision taking into account that the applicant is a flight risk. Counsel cited the case of Twayba Hashim Mtandi & 3 others v Republic HCC Misc Application No. 118 of 2014 and submitted that the best remedy parties have where bail/bond has been denied is to have the court expedite the hearing.

Issues for determination 19. I have considered the affidavits of the parties, their submissions and the applicable law.I find that the issues for determination are as follows.1. Whether this Court has jurisdiction to entertain the present application for review2. Whether the accused/applicants have made out a case for the grant of the orders sought.The powers of the High court in revision are contained in sections 362 through to 366 of the Criminal Procedure Code (Cap.75) Laws of Kenya. Section 362 specifically provides as follows: -362. The High Court may call for 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”.

20. Revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by Waweru, J in Republic vs. Samuel Gathuo Kamau[2016] e-KLR, where the learned Judge observed that:

Needless to say, that supervisory jurisdiction is exercised as may be provided by law – by way of appeal, revision, etc. it does not include on any perceived power to make a decision on behalf of a subordinate court which that court ought to make. In the case of appeals the supervisory power is exercised in respect to conviction, sentence, acquittal (section 347, 348 and 348A of the Criminal Procedure Code). As for revision, the supervisory jurisdiction is exercised in respect to findings, sentences, orders and regularity of any proceedings. See Article 165(7) of the Constitution and Section 362 and 364 of the Criminal Procedure Code.” 21. In the instant application, the applicant is challenging the denial of bail/bond by the trial Court. This court has carefully considered the submission in light of the application and the response to the application that are on record. The court has also perused the court file.

22. From the record it is clear that the accused was arraigned in court on 24th January 2022. The charges were read to him and he denied the charges. Upon the application for bond/bail pending trial the court directed that the application be heard by the court on 8th February, 2022. The application for bail pending trial was neither heard nor determined by the court when he pleaded not guilty.

22. In his application, the applicant has sought review of the orders of the magistrate court denying him bail. However, as rightly pointed out by prosecution counsel, no such orders were ever issued. His application for review is therefore premature. Furthermore, this court cannot exercise its revisionary jurisdiction where there are no orders to be revised.

23. In the circumstances, I find that the trial court had not determined the application bail/bond of the applicant. It therefore follows that the application for review fails in its entirety and is hereby dismissed.

24. In the premises, the matter is referred back to the trial Court for hearing and determination of the bail application of the applicant.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT THROUGH VIDEO CONFERENCE AT NAIROBI THIS 17TH DAY OF MARCH 2022. J M BWONWONG’AJUDGEIn the presence of: -Mr. Kinyua: Court Assistant.Mr. Gichuki holding brief for Mr. Kyalo for the accused applicant.Ms. Kibathi for the Respondent