[2016] KEHC 7949 (KLR)
The court found that the applicant failed to attend court on several occasions without sufficient justification. The explanation of illness was not supported by evidence of communication to the court regarding his absence. The purpose of bail is to secure attendance at trial, and the applicant's repeated absences...
Source-derived case information.
- Citation
- [2016] KEHC 7949 (KLR)
- Parties
- Applicant: Josphat Kariuki Kariuki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 163 of 2016
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application to Set Aside Bail Forfeiture and Restore Bail
- Outcome
- application dismissed
- Judges
- LK Kimaru
- Legal Topics
- Bail Forfeiture, Absconding Accused, Judicial Discretion, Remand Custody
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josphat Kariuki Kariuki
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application to Set Aside Bail Forfeiture and Restore Bail
Legal Issues
- 1 Whether the court should set aside the order cancelling the applicant's bail and restore the cash bail.
- 2 Whether the applicant's explanation for failing to attend court constitutes sufficient justification to warrant restoration of bail.
- 3 Whether the forfeiture of the cash bail was legally justified.
Ratio Decidendi
The court found that the applicant failed to attend court on several occasions without sufficient justification. The explanation of illness was not supported by evidence of communication to the court regarding his absence. The purpose of bail is to secure attendance at trial, and the applicant's repeated absences breached this fundamental condition. The court held that the forfeiture of the cash bail was lawful and that the applicant's conduct did not warrant restoration of bail. Consequently, the application to set aside the bail forfeiture and restore bail was dismissed, and the applicant was ordered to remain in remand custody pending trial.
Court Disposition
application dismissed
Orders
- The applicant's application to set aside the order cancelling his bail and to restore the cash bail is dismissed.
- The cash bail remains forfeited.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO.163 OF 2016
JOSPHAT KARIUKI KARIUKI….…….......………………………………………………………APPLICANT
VERSUS
REPUBLIC…………………………………………………………………………………......RESPONDENT
RULING
The Applicant, Josphat Kariuki Kariuki is facing a charge of obtaining by false pretences contrary to Section 313 of the Penal Code. He has been charged before the Makadara Chief Magistrate’s Court in Criminal Case No.940 of 2014. When the Applicant was arraigned before the said court, he pleaded not guilty to the charge. He was released on a cash bail of Kshs.50,000/-. The Applicant however absconded from court. His bail was cancelled. The cash bail was forfeited. A warrant of arrest was issued. He was later arrested on an unrelated matter and brought to court. The Applicant has applied to this court to set aside the order cancelling his bail or in the alternative direct that he be refunded the cash bail now that he is in remand custody awaiting his trial. The Applicant explained that he failed to attend court due to the fact that he fell ill and was at the time being medically attended to. He pleaded with the court to restore his bail due to his medical condition. He stated that his medical condition requires specialized treatment and can only be properly managed while he is out on bail. He promised to abide by any terms that the court may impose to secure his attendance before court. The Applicant reiterated the contents of his application in the oral submission that he made before court.
The application was vehemently opposed by the prosecution. Ms. Aluda for the prosecution submitted that the Applicant should not be released on bail pending trial because he had twice absconded from court without any apparent reason or justification. The trial court had indulged him the first time that he failed to attend court but subsequently thereafter cancelled his bond when he again failed to attend court. In her view, the forfeiture of the cash bail was justified. She submitted that the Applicant frustrated the hearing of the case when he failed to appear before the court on four occasions. In the circumstances therefore, this court cannot exercise its discretion in the Applicant’s favour when clearly he has shown that he cannot be trusted to attend court if released on bail pending trial.
This court has carefully considered the rival arguments made in this application. It is clear from the record of the court that the Applicant, without any justifiable reason failed to attend the trial court when he was required so to do. Although the Applicant claims that he was sick at the time and therefore was unable to attend court due to his medical condition that explanation does not hold because the Applicant was not prevented by his alleged illness from communicating to court either through an agent or in writing for his failure to attend court to be noted. The main reason why an accused person is released on bail pending trial is on condition that he attends court on the date that the case is scheduled for trial. In the present application, it was clear that the Applicant breached the terms of his bail by failing to attend court, not on one occasion, but on several occasions. The Applicant’s plea for this court to restore his cash bail therefore cannot be granted because, from his past conduct, this court cannot trust that he will attend court if he is so released on bail pending trial.
In the premises therefore, the Applicant’s application cannot therefore be allowed. The cash bail was legally forfeited. The Applicant will remain in remand custody pending his trial. His application is dismissed. It is so ordered.
DATED AT NAIROBI THIS 28TH DAY OF JULY 2016
L. KIMARU
JUDGE