[2007] KEHC 863 (KLR)
The High Court found that although the application was brought under the wrong section of the Criminal Procedure Code and was made jointly by both applicants, these procedural defects did not prejudice the respondent or affect the substance of the application. The court held that it had jurisdiction under Section...
Source-derived case information.
- Citation
- [2007] KEHC 863 (KLR)
- Parties
- Applicant: Joseph Kinyua Kabete; Applicant: Jackson Mugambi Kabete; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- ? 10 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Review Bail Terms
- Outcome
- application allowed in part
- Legal Topics
- Bail Review, Criminal Procedure, Excessive Bail, Trial Court Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kinyua Kabete
Applicant
Jackson Mugambi Kabete
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Review Bail Terms
Legal Issues
- 1 Whether the High Court has jurisdiction to review bail terms set by a subordinate court.
- 2 Whether the bail terms imposed on the applicants were excessive given the offence and their circumstances.
- 3 Whether the application was fatally defective for citing the wrong provision of law or for being brought jointly.
Ratio Decidendi
The High Court found that although the application was brought under the wrong section of the Criminal Procedure Code and was made jointly by both applicants, these procedural defects did not prejudice the respondent or affect the substance of the application. The court held that it had jurisdiction under Section 123(3) of the Criminal Procedure Code to review and reduce bail set by a subordinate court. Considering the offence charged (assault) and the applicants' status as peasant farmers, the court determined that the cash bail of Kshs.20,000/= each was excessive. The court therefore reduced the cash bail to Kshs.5,000/= for each applicant.
Court Disposition
application allowed in part
Orders
- The cash bail for each applicant is reduced from Kshs.20,000/= to Kshs.5,000/=.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Misc Crim Appli 10 OF 2007
JOSEPH KINYUA KABETE ……………………..…… 1ST APPLICANT
JACKSON MUGAMBI KABETE ……………….…….. 2ND APPLICANT
VERSUS
REPUBLIC ……………………….…….................…….. RESPONDENT
RULING
The applicants are charged in the court below at Marimanti with the offence of assault contrary to Section 251 of the Penal Code. They were granted cash bail in the sum of Kshs.20,000/= each.
They have now approached this court in an application of 7th March, 2007 praying that the bail terms be reviewed and/or varied on the grounds that the bail terms are excessive and that the applicants are peasant farmers who cannot raise Kshs.20,000/=. They have also averred that they will not abscond if given favourable bail terms.
The application was opposed by counsel for the State who submitted that the two applications ought to have been brought separately. Secondly counsel argued that the applicants should have made the application before the trial court and finally that the application has been brought under the wrong Section of the Criminal Procedure Code.
I will start with this point. The application is expressed to be brought under Section 362 of the Criminal Procedure Code, which donates to the High Court the power to call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. Clearly this is not what is sought in this application. The applicants would like their bail terms reviewed. That application ought to have been made in the first instance to the trial court. However, under Section 123(3) of the Criminal Procedure Code, introduced by Act No.5 of 2003.
The High Court may reduce the bail required by the subordinate court. The two applicants are jointly charged in the court below and the order they seek to be varied affect both of them. I find no prejudice in the fact that they have brought this application together. Similarly the citing of a wrong provision of the law has not affected the application.
I am satisfied that in view of the offence charged and the applicant’s disposition, the cash bail ordered is high. The same is reduced to Kshs.5,000/= for each applicant.
Orders accordingly.
DATED AND DELIVERED AT MERU THIS 7TH DAY OF May, 2007
W. OUKO
JUDGE