[2019] KEHC 3766 (KLR)
The High Court declined to exercise its revisionary jurisdiction over the lower court's orders denying bail, holding that revision was not the appropriate remedy in the circumstances. The court found that the applicant should have filed an appeal against the two decisions denying him bail, as this would have allowed...
Source-derived case information.
- Citation
- [2019] KEHC 3766 (KLR)
- Parties
- Applicant: Hezekiah Kimemia; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 36 of 2019
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Revision of Bail Denial
- Outcome
- application for revision refused
- Judges
- K Kimondo
- Legal Topics
- Bail and Bond, Revision Jurisdiction, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezekiah Kimemia
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Revision of Bail Denial
Legal Issues
- 1 Whether the High Court should revise the lower court's orders denying the applicant bail.
- 2 Whether revision is the appropriate remedy as opposed to an appeal in the circumstances.
Ratio Decidendi
The High Court declined to exercise its revisionary jurisdiction over the lower court's orders denying bail, holding that revision was not the appropriate remedy in the circumstances. The court found that the applicant should have filed an appeal against the two decisions denying him bail, as this would have allowed the High Court to properly address the merits of the lower court's decisions. The court emphasized that the trial magistrate had exercised her discretion judiciously, citing relevant law and precedents, and that there was no manifest illegality or impropriety warranting intervention by way of revision. Accordingly, the application for revision was refused and the original...
Court Disposition
application for revision refused
Orders
- The application for revision is refused.
- The original record shall be transmitted back to the trial court forthwith.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MURANG’A
MISCELLANEOUS CRIMINAL APPLICATION NO. 36 OF 2019
HEZEKIAH KIMEMIA……………..……………………………..……….APPLICANT
VERSUS
REPUBLIC……………………………………………………..….……..RESPONDENT
[Revision from orders in S.O. 38 of 2019 at Kigumo by A. Ogonda,Senior Resident Magistrate dated 18th June 2019 and 17th July 2019]
RULING
1. The applicant has moved the court for revision of two rulings and orders dated 18th June 2019 and 17th July 2019 denying him bail.
2. The grounds are detailed in a Notice of Motion dated 29th August 2019 and two depositions of even date by his counsel of record; and, by the applicant’s wife.
3. Section 362 as read with section 364 of the Criminal Procedure Code vests the High Court with wide power to call for the record of the lower court to examine the decision on correctness, legalityorpropriety.
4. In a nutshell the applicant avers that his original application for bail; and, the subsequent application for review were unfairly or unreasonably dismissed by the lower court. The effect is that the applicant has languished in custody since 22nd May 2019 when he was first arraigned in court. Paraphrased, the applicant contends that the learned trial magistrate improperly exercised her discretion thereby denying the applicant his constitutional rights guaranteed by Articles 29, 49and50of the Constitiution.
5. I have carefully studied the original record. The applicant is charged with defilementof a child aged 11 years. The learned trial magistrate went into great length and cited the law and some precedents to back up the impugned decisions. The overarching objective of bail is to ensure the accused attends his trial. Muraguri v Republic [1989] KLR 181. However, the trial court, retains discretion whether to grant bail. The decision has of course to be made in a judicious manner.
6. The applicant has applied for revision. It is inappropriate in the circumstances. In my view, the applicant should have lodged an appeal against the two decisions denying him bail. In that way, the High Court would properly deal with the merits of the decisions by the lower court. The less I say about it the better.
7. The revision is accordingly refused. The original record shall be transmitted back to the trial court forthwith.
It is so ordered.
DATED, SIGNED and DELIVERED at MURANG’A this 3rd day of October 2019.
KANYI KIMONDO
JUDGE
Ruling read in open court in the presence of-
The applicant (absent)
Mr. C. Mbugua for the applicant.
Mr. S. Mutinda for the Republic.
Ms. Elizabeth, Court Clerk.