[2018] KEHC 6651 (KLR)
The court found that, in the absence of proceedings cancelling the bond or withdrawing the surety, the bond remains valid and the court is responsible for the title deed deposited as surety. The trial court must either release the applicant on the existing bond or provide an alternative if the surety was withdrawn...
Source-derived case information.
- Citation
- [2018] KEHC 6651 (KLR)
- Parties
- Appellant: Edwin Musavi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Application 342 of 2017
- Procedural Posture
- Criminal Application / Ruling on Bond and Transfer Application
- Outcome
- Application for transfer declined; directions issued on bond and expeditious hearing.
- Legal Topics
- Bond Release, Surety Liability, Case Transfer, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Musavi
Appellant
Republic
Respondent
Procedural Posture
Criminal Application / Ruling on Bond and Transfer Application
Legal Issues
- 1 Whether the applicant is entitled to the release of the title deed deposited as surety for bond.
- 2 Whether the trial court must provide an alternative means of securing the applicant's release if the bond is still valid.
- 3 Whether the transfer of the case to Milimani Law Courts is necessary.
Ratio Decidendi
The court found that, in the absence of proceedings cancelling the bond or withdrawing the surety, the bond remains valid and the court is responsible for the title deed deposited as surety. The trial court must either release the applicant on the existing bond or provide an alternative if the surety was withdrawn or the applicant faces another charge, subject to confirmation that the related criminal case was withdrawn under Section 87(a) of the Criminal Procedure Code. The court declined to order a transfer of the case to Milimani Law Courts, holding that such a transfer would not resolve the issue of unavailable witnesses and that the adoption of previously adduced evidence is...
Court Disposition
Application for transfer declined; directions issued on bond and expeditious hearing.
Orders
- Mention on 10/4/2018 to confirm release of applicant on bond or alternative.
- Trial court file to be released to trial magistrate for mention on 27/03/2018 for compliance.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPLICATION 342 OF 2017
EDWIN MUSAVI...................................................APPELLANT
VERSUS
REPUBLIC..........................................................RESPONDENT
RULING
On the issue of bond, the original record of proceedings clearly shows that the then trial court approved the surety bond on 8/5/2012. A title deed for L.R. No. Kakamega/Mukulusu/332 was consequently deposited in court.
Therefore, unless there are proceedings showing that the bond was cancelled and surety withdrawn, the court takes full responsibility of producing the title deed. Unless by oversight, I have not seen proceedings cancelling the bond or withdrawing the surety, I observe that it is then the duty of the court to explain to the applicant and the surety about the whereabouts of the title deed. In the mean time, if this is the position that obtains, the trial court must find an alternative to securing the release of the applicant.
This must be done upon confirmation by that court that indeed Cr. Case No. 700/2015 (Makadara) was withdrawn under Section 87(a) Criminal Procedure Code.
On the issue of transfer of the case to Milimani Law Courts, I do not see the need to issue the order requested. If the prosecution has already informed the court that witnesses cannot testify afresh due to their non-availability that position will not change by the mere fact of transferring the case to another court. I think the court is on the right track of ordering that the evidence already adduced be adopted. However, pertinent issues may arise if the applicant is convicted particularly as to whether his right to a fair trial was infringed. This is not the forum to address this matter. However, noting that the case is old, the trial magistrate is directed that the trial be heard on a priority basis and on a day to day basis. This will ensure that the applicant’s right to a fair hearing is not further violated.
Back to the issue of the bond, I order a mention on 10/4/2018 to confirm that the learned trial magistrate has released the applicant on bond; this relates to the previous bond approved or an alternative to the same. The latter should apply only if the court confirms that the surety was withdrawn or the applicant is facing another criminal charge.
I order that the trial court file be forthwith released to the trial magistrate for mention before him on 27/03/2018 for compliance with the orders issued herein. The learned trial magistrate shall then write to this court on the steps taken pursuant to the orders of this court.
This ruling shall be served upon the learned trial magistrate accordingly.
DATED AND DELIVERED THIS 12TH MARCH, 2018
G.W. NGENYE-MACHARIA
JUDGE