[2013] KEHC 2655 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Milimani Law Courts)

Miscellaneous Criminal Application 129 of 2013 [if gte mso 9]><xml>

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JOSEPH MBUGUA WAWERU ……………………………… APPLICANT

VERSUS

REPUBLIC …………………………………………………RESPONDENT

RULING

This is an application for orders that the applicant be granted bond or bail in criminal case No. 358 of 2013 in the Chief Magistrate’s court Milimani, and transfer that case from that court to any other court. In that case the applicant is facing four offences. In count I he is charged with the offence of stealing a Motor vehicle contrary to Section 278 (A) of the Penal Code. In count II he is charged with the offence of obtaining money by false pretences contrary to Section 313 of the Penal Code. In count III he faces the offence of forgery contrary to Section 349 of the Penal Code and finally in count IV he is charged with the offence of uttering a false document contrary to section 353 of the Penal code.

He denied all the offences and was denied bail and the case ordered to go for trial. The reasons for denial of bail when he first appeared before the Chief Magistrate was that, the prosecution submitted he had three pending cases where warrants of arrest were in force. His counsel also stated that his client had been sick but the Chief Magistrate noted that there was no indication that he had been hospitalized and therefore denied him bond.

When the matter came up for mention on a subsequent date, the Chief Magistrate ordered that the applicant be taken to the courts which issued warrants of arrest to deal with the bond issue, and only thereafter would the issue of bond in the present case be addressed. The applicant then requested to be given a hearing date and that he would proceed without any advocate. The case was then listed for hearing on 15th May, 2013.

Subsequently, the applicant applied for bond before the trial court which was denied due to the several cases pending against him and which in the opinion of the learned trial magistrate, compromised his appearance in court thereby hindering expeditious trial. On the date fixed for hearing, the applicant informed the court that he had left his glasses in prison and was unable to read well and so prayed for another hearing date. He also said that he had just received the documents. This move was opposed by the prosecution who submitted that the applicant just wanted to delay the case. The application for adjournment was refused and the trial started with P.W. 1 giving evidence and subjected to a lengthy cross examination by the applicant.

At the end of proceedings of that day, it is the applicant who asked the court to fix the date for hearing after 20th June, 2013 as that is when he will not have cases in other courts.The hearing then was set for 27th June, 2013.

I have given that brief background so as to place on record that it is not the court that has been blocking the expeditious disposal of the case before it. From the records before me some cases against the applicant date back to the year 2005 a period of about 8 years to date. There is no reason why those old cases have not been disposed off.The only reason that presents itself is that, the applicant has not been willing to have the cases completed and this is evident in the case in point.

I know that the Constitution provides the right to an accused person to be released on bail on reasonable terms unless there are compelling reasons to deny him that right. The multiplicity of cases against the applicant point to the fact that whereas he may have been released on bail, he continued to be arraigned in court and this would appear to suggest that he may have committed other offences while out on bail thereby taking advantage of that freedom.

I know his innocence must be presumed until proved guilty but on the other hand the court has a constitutional and statutory duty to dispense justice expeditiously. That duty is supposed to benefit both the applicant and the complainants. Regrettably, from the facts before me, the applicant appears to have misused that freedom. That alone is a compelling reason to deny the applicant the right to bail in the circumstances obtaining. I therefore find that there is no merit in the application for bail. The same is declined.

I have also not been shown any evidence to remove this case from the learned trial magistrate for any reason and transfer it to another court. The trial therefore shall proceed before the learned trial magistrate until completion. The original file shall now be returned to the learned trial magistrate to continue with the hearing on the appointed date.

Orders accordingly.

Dated and delivered at Nairobi this 3rd Day of June, 2013.

A.MBOGHOLI MSAGHA

JUDGE

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