[2021] KEHC 1267 (KLR)
The High Court held that the trial court erred in refusing to approve the surety and thereby effectively reversing the bond order without following proper procedure. Once bond is granted and the accused meets the terms, the court cannot deny the accused the benefit of bond unless the bond order is formally and...
Source-derived case information.
- Citation
- [2021] KEHC 1267 (KLR)
- Parties
- Applicant: Edeh Ikechekwu Kingsley; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application E074 of 2021
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Set Aside Order Declining Bond Approval
- Outcome
- application allowed; order declining surety approval set aside; original bond order reinstated
- Judges
- GV Odunga
- Legal Topics
- Bail and Bond, Flight Risk Assessment, Surety Approval, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edeh Ikechekwu Kingsley
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Set Aside Order Declining Bond Approval
Legal Issues
- 1 Whether the trial court could decline to approve a surety after bond had already been granted to the applicant.
- 2 Whether the trial court's refusal to approve the surety amounted to a reversal of the bond order without due process.
Ratio Decidendi
The High Court held that the trial court erred in refusing to approve the surety and thereby effectively reversing the bond order without following proper procedure. Once bond is granted and the accused meets the terms, the court cannot deny the accused the benefit of bond unless the bond order is formally and procedurally set aside. The refusal to approve the surety on grounds not previously raised at the time of granting bond, and without a formal application to reverse the bond order, was improper and violated the applicant's constitutional rights. The High Court therefore set aside the trial court's order declining surety approval and reinstated the original bond order.
Court Disposition
application allowed; order declining surety approval set aside; original bond order reinstated
Orders
- The application is allowed.
- The order made on 27th October, 2021 declining surety approval is set aside.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
(Coram: Odunga, J)
MISC. CRIMINAL APPLICATION NO. E074 OF 2021
EDEH IKECHEKWU KINGSLEY....APPLICANT
VERSUS
REPUBLIC......................................RESPONDENT
(From original order in Mavoko Chief Magistrate’s Court Criminal Case No. E263 of 2020 (Hon. B. Kasavuli, PM, PM on 27th October, 2021)
BETWEEN
REPUBLIC....................................PROSECUTOR
- VERSUS -
EDEH IKECHEKWU KINGSLEY......ACCUSED
RULING
1. The applicant herein, Edeh Ikechekwu Kingsley, was charged before Mavoko Chief Magistrate’s Court Criminal Case No. E263 of 2020 an offence to which he pleaded not guilty. A formal application for release on bond was then made which was opposed by the prosecution and a reserved ruling made on 15th December, 2020. By that ruling, the trial court allowed the application and granted the applicant a bond of Kshs 400,000. 00 plus one surety of similar amount. In addition, it was ordered that the applicant would deposit his passport No. Axxxx in court pending the hearing and final determination of the case.
2. However, on 7th January, 2021 when the surety appeared before the trial court for approval, the same was objected to by the prosecution which objection was upheld by the trial court and the court declined to approve the surety. On 27th October, 2021, the matter once again came before the trial court for bond approval. The same was once again opposed by the prosecution on the ground that the passport was a counterfeit. The trial court then declined the approval of the surety and directed that the applicant remains in custody being of the persuasion that the applicant might be or posed a high flight risk.
3. I have considered the application dated 15th November, 2021 which, rightly in my view, was not opposed by Mr Ngetich, learned counsel for the prosecution. In my view, once an accused person is admitted to bond, the court cannot under the guise of approving the bond terms purport to reverse its order on bond. In other words, approval of bond terms is not the same thing as the grant of bond. Until an order admitting an accused to bond is procedurally reversed, an accused person who meets the terms of the bond ought to be allowed to enjoy the constitutional rights.
4. In the premises I allow the application and set aside the order made on 27th October, 2021 to the extent that it purported to reverse the admission of the applicant on bond. For avoidance of doubt the order made on 15th December, 2020 is still in force.
5. It is so ordered.
READ, SIGNED AND DELIVERED AT MACHAKOS THIS 17TH DAY OF DECEMBER, 2021
G.V. ODUNGA
JUDGE
Delivered in the presence of:
The Applicant Online
Mr Kimathi for the Applicant
Mr Ngetich for the Respondent
CA Susan