[2021] KEHC 6897 (KLR)
The court found that the appellant, having absconded for twenty years after being released on bail pending appeal, is deemed to have abandoned his appeal. Consequently, the sentence imposed upon conviction remains unserved and must now be executed. The surety, having failed to ensure the appellant's attendance and...
Source-derived case information.
- Citation
- [2021] KEHC 6897 (KLR)
- Parties
- Appellant: George Maina Ndung'u; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 987 of 2001
- Procedural Posture
- Criminal Appeal / Ruling on Execution of Sentence and Surety Enforcement After Absconding on Bail Pending Appeal
- Outcome
- Appeal deemed abandoned due to appellant's absconding; sentence to be executed; surety enforcement ordered; file closed.
- Judges
- LN Mutende
- Legal Topics
- Bail Pending Appeal, Forfeiture of Recognizance, Execution of Sentence, Absconding Accused, Surety Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
George Maina Ndung'u
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Ruling on Execution of Sentence and Surety Enforcement After Absconding on Bail Pending Appeal
Legal Issues
- 1 Whether the appellant, having absconded after being released on bail pending appeal, has abandoned his appeal.
- 2 Whether the sentence imposed on the appellant should now be executed despite the lapse of time.
- 3 Whether the surety is liable for failing to ensure the appellant's attendance and what enforcement measures should be taken.
Ratio Decidendi
The court found that the appellant, having absconded for twenty years after being released on bail pending appeal, is deemed to have abandoned his appeal. Consequently, the sentence imposed upon conviction remains unserved and must now be executed. The surety, having failed to ensure the appellant's attendance and not reporting to court, is liable under the law for forfeiture of the recognizance and subject to enforcement measures. The court directed the DCI to arrest both the appellant to serve his sentence and the surety to be dealt with in accordance with the Criminal Procedure Code. The file was ordered closed, as the appeal was effectively abandoned by the appellant's conduct.
Court Disposition
Appeal deemed abandoned due to appellant's absconding; sentence to be executed; surety enforcement ordered; file closed.
Orders
- The DCI is directed to arrest the appellant and present him to prison to serve his jail term.
- The DCI shall arrest the surety to be dealt with in accordance with section 131(4) of the Criminal Procedure Code.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION- MILIMANI COURT
CRIMINAL APPEAL NO. 987 OF 2001
GEORGE MAINA NDUNG’U.......................................................APPELLANT
VERSUS
REPUBLIC..................................................................................RESPONDENT
RULING
1. Upon arraignment, George Maina Ndungu the Appellant was charged jointly with six (6) others with two counts of stealing goods in transit contrary to Section 279 (c) of the Penal Code; forgery contrary to Section 349 of the Penal Code; and uttering a document with intent to defraud contrary to Section 357 (b) of the Penal Code.
2. Having been taken through full trial, they were found guilty of stealing goods in transit, convicted and sentenced to serve eighteen years imprisonment, plus administration of corporal punishment on the 19th day of December, 2001.
3. Aggrieved, he exercised his right of appeal by appealing against the conviction and sentence.
4. On 20th December, 2001, he applied to be released on bail pending appeal, an application that was allowed. The court granted him Ksh. 200,000/- surety recognizance. Particulars of his surety were as follows:
Njoroge Mwangi
Identity Number 6440642
P.O. Box 56301
Telephone Number-212201
House- 787461
Residential- Buruburu Estate (Prudential Estate)
House Number 24(Owner)
Friends contact: Occupation-Sparkling Cleaners
P.O. Box 56301, Telephone No. 212201, Loita Street, Uniafric House.
5. The Surety presented security which was a Logbook Serial Number 579672 for Motor vehicle Registration Number KAK 789 M. The Appellant did not follow conditions set, he absconded and his surety who promised to supervise him by ensuring his attendance in court did not report to court. He was therefore required to show cause as to why the recognizance could not be estreated. The surety having failed to discharge his duty and the police having failed to execute the warrant of arrest issued for both the Appellant and his surety, the court was mandated to recover the security by issuance of a warrant for attachment of the security which was movable property that should have been sold. (See Section 131(2) of the Criminal Procedure Code).
6. The Appellant having been released on 24th December, 2021 and having absconded, the case was mentioned by several Judges, namely: Mbito J, Lesiit J, Warsame J (As he then was), Njagi J, and Ngenye-Macharia J. I took over the matter on the 24th February, 2021 and there has been reluctance on the part of the ODPP and DCI, Railways to act as provided in law. The matter has been mentioned in court for the last twenty (20) years without execution of the warrants of arrest issued for both the Appellant and the surety.
7. Section 357 of the CPC provides thus:
(1) After the entering of an appeal by a person entitled to appeal, the High Court, or the subordinate court which convicted or sentenced that person, may order that he be released on bail with or without sureties, or, if that person is not released on bail, shall at his request order that the execution of the sentence or order appealed against shall be suspended pending the hearing of his appeal:
8. Upon being released on bond, the sentence meted out against the Appellant was suspended, and, having absconded twenty years ago, he is deemed to have abandoned the appeal. The sentence imposed was therefore not served. I therefore make orders as follows:
a) The DCI be and is hereby directed to arrest the Appellant and present him to Prison to serve his jail term.
b) The DCI shall arrest the Surety to be dealt with in accordance with section 131(4) of the Criminal Procedure Code.
c) This file be and is hereby be deemed to be closed.
8. It is so ordered.
Dated, Signed and Delivered Virtually this 19th Day of May, 2021.
L. N. MUTENDE
JUDGE