[1978] KEHC 4 (KLR)
The court held that the cancellation of the appellant's bond after the prosecution closed its case and a prima facie case was found did not amount to bias. The magistrate's discretion to grant or refuse bail during trial must be exercised based on the circumstances of each case, and there is no rule requiring...
Source-derived case information.
- Citation
- [1978] KEHC 4 (KLR)
- Parties
- Appellant: Charles Alwando Opondo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 721 of 1977
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Bail During Trial, Judicial Discretion, Bond Cancellation, Prima Facie Case
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Alwando Opondo
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the magistrate exercised proper discretion in cancelling the appellant's bond after finding a case to answer.
- 2 Whether the cancellation of bond amounted to bias against the appellant.
- 3 What principles govern the grant or refusal of bail during trial in a Magistrate's Court.
Ratio Decidendi
The court held that the cancellation of the appellant's bond after the prosecution closed its case and a prima facie case was found did not amount to bias. The magistrate's discretion to grant or refuse bail during trial must be exercised based on the circumstances of each case, and there is no rule requiring automatic cancellation of bail upon establishment of a prima facie case. The magistrate's actions were found to be within proper judicial discretion, and no evidence of bias was established. The appeal was therefore dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL APPEAL NO 721 OF 1977
CHARLES ALWANDO OPONDO .................................APPELLANT
VERSUS
REPUBLIC...................................................................RESPONDENT
JUDGMENT
After referring to R v Sumboso s/o Ruhinda(1948) 15 EACA 99 and Thairu s/o Muhoro v R(1954) 21 EACA 187, it was stated that the only possible inference from the facts was that the appellant had stolen money.
His lordship added that the recall of witnesses for cross-examination was essentially a matter within the discretion of the trial judge and that the magistrate had correctly exercised his discretion. His Lordship then continued: And we turn to the final ground of appeal, that the magistrate displayed bias in cancelling the appellant’s bond before the trial ended.
When the prosecution closed its case, the magistrate resolved to cancel the appellant’s bond and remand him in custody. He has recorded: “After the end of the prosecution case Court found accuseds had case to answer.
This prompted [the appellant’s] bond to be cancelled”. He may have taken the view that, having found that each of the accused had a case to answer, he was required to cancel the appellant’s bond (the other accused was in remand); but, if that is so, he has misunderstood the situation. A Court does not have to cancel an accused’s bond simply because the point in a trial has been reached where a prima faciecase has been made out. But what the magistrate did exhibits no bias to us.
We know of no local decision, no practice direction, concerning bail during trial in a Magistrate’s Court, and the matter being of general importance we express the view (guided by Practice Direction Crime: Bail during Trial)[1974] 1 WLR 770 issued by the English Court of Appeal of 4th June 1974) that, once a trial has begun, the further grant of bail is in the discretion of the trial magistrate. But an accused who has been on bail while on remand should not be refused bail during the trial, unless in the opinion of the magistrate there are positive reasons to justify this refusal, eg that a point has been reached where there is a real danger that the accused will abscond, either because the case against him is going badly for him, or for some other reason, or there is a real danger that he may interfere with witnesses. There is no rule of practice that bail shall not be renewed when a prima faciecase has been established against an accused; but every case must be decided in the light of its own circumstances and having regard to the magistrate’s assessment from time to time of the risks involved. Once the magistrate has convicted an accused, the further renewal of bail where a custodial sentence is a likely consequence, should be regarded as exceptional.
Appeal dismissed.
Dated and delivered at Nairobi this 16th February 1978.
E. TREVELYAN J.H.S TODD
JUDGEJUDGE