[2016] KEHC 8026 (KLR)
The court held that while the right to bond is constitutionally guaranteed, it is not absolute and may be limited by compelling reasons. The High Court has revisionary jurisdiction to review decisions of subordinate courts regarding bail. However, for the court to exercise this jurisdiction, the application must be...
Source-derived case information.
- Citation
- [2016] KEHC 8026 (KLR)
- Parties
- Applicant: Clement Serge Bristol; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 92 of 2015
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Bond Pending Trial
- Outcome
- Application deferred for non-compliance; applicant directed to file and serve the relevant order.
- Judges
- DO Chepkwony
- Legal Topics
- Bail Pending Trial, Revisionary Jurisdiction, Constitutional Rights, Bond Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Clement Serge Bristol
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Bond Pending Trial
Legal Issues
- 1 Whether the applicant should be released on bond pending trial despite being a foreigner.
- 2 Whether the application is competent in the absence of the lower court's order being attached.
- 3 What are the relevant considerations for granting or denying bond under Kenyan law.
Ratio Decidendi
The court held that while the right to bond is constitutionally guaranteed, it is not absolute and may be limited by compelling reasons. The High Court has revisionary jurisdiction to review decisions of subordinate courts regarding bail. However, for the court to exercise this jurisdiction, the application must be accompanied by the order or ruling sought to be reviewed. In this case, the applicant failed to attach the ruling of the Chief Magistrate denying bond, thereby depriving the court of the opportunity to understand the reasons for the denial. As a result, the court could not make an informed decision on the merits of the application and directed the applicant to file and serve...
Court Disposition
Application deferred for non-compliance; applicant directed to file and serve the relevant order.
Orders
- The applicant and his counsel are directed to file and serve the office of the Director of Public Prosecution with the order of 1st July, 2015 in Mombasa Chief Magistrate’s Criminal Case No 732 of 2015 within 7 days.
- Mention on 22nd September 2016 for further directions.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH CORT OF KENYA AT MOMBASA
MISCELLANEOUS CRIMINAL APPLICATION NO. 92 OF 2015
CLEMENT SERGE BRISTOL.............................................APPLICANT
VERSUS
REPUBLIC......................................................................RESPONDENT
R U L I N G
1 This is an application by way of Notice of Motion brought under section 123 (3) of the Criminal Procedure Code, Article 49 (1) (h) of the Constitution and all other enabling provision on the law.
2 In his application, the applicant seeks an order that he be released on bond pending trial of criminal case No 732 of 2015, Mombasa Chief Magistrates Court on such order as the court may deem fit.
3 In considering the application, I have read through the notice of motion dated 22nd October, 2015, the supporting affidavit of Jared Magolo, counsel for the applicant, the attachments to the said application and all the arguments advanced by both counsel to his court.
4 I find that the application is resultant of the ruling by Hon. Nang’ea, Chief Magistrate, Mombasa delivered on 1st July, 2015 in Mombasa Chief Magistrate’s Criminal Case No 732 of 2015.
5 The said ruling has not been attached to the application herein. This has been confirmed by Mr Magolo counsel for the Applicant
6 According to Mr Nang’ea, in this ruling, all the accused were ordered to be released on bond except for his client on the ground that he is a foreighner.
7 I wish to point out that the right to bond is a Constitutional right guaranteed under Article 49 (1) (h) of the Constitution unless there are compelling reason for one t be denied the same. This therefore not absolute right.
8 The discretion to grant or not to grant bond lies with a particular magistrate of court after putting various considerations to play.
The main consideration in granting bond is the assurance by the accused either by himself/herself or by people related to him/her but he/she will avail himself /herself as and when required by the court.
9 There are also other considerations. Section 123 (3) of the Criminal Procedure Code provides;
“The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced”.
10 This section clearly affords the High court both original and revisionary jurisdiction. The application before me invokes the courts revisionary jurisdiction. It is trite law that anyone seeking to have variation of a court order or decision, must ensure their applications is accompanied by the said order or decision and all other relevant information there to
11 The application herein as conceded by the applicant’s counsel is not accompanied by the order dated 1st July, 2015 which it seeks to be reviewed.
This court therefore has had no been benefit of perusing the said order so as to appreciate the circumstances or reasons why the applicant was denied bond while the rest were released on bond.
12 I therefore direct the Applicant and his counsel to file and serve the office of the Director of Public prosecution with the order of 1st July, 2015 in Mombasa Chief Magistrate’s Criminal case No 732 of 2015 within 7 days to enable his court make an informed decision in this matter.
Mention on 22. 9.2016 for further directions.
D. O. CHEPKWONY
JUDGE
Ruling read and delivered this 15th day of September 2016
In the present of:
Mr Ayondo for the state- present
Mr Magolo for the Applicant
C/clerk- Kiarie