[2022] KEHC 10354 (KLR)

Juma v Republic (Criminal Revision E018 of 2022) [2022] KEHC 10354 (KLR) (Crim) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10354 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E018 of 2022

DO Chepkwony, J

May 19, 2022

Between

Abdulrahman Imran Juma

Applicant

and

Republic

Respondent

Ruling

1. The Government of the United States of America sought mutual legal assistance to have the Applicant extradited to the United States of America to answer to criminal charges.

2. According to the application presented before the Chief Magistrate’s Court Nairobi, the Respondent with others already in the United States of America were indicted by the United States District Court for the Central District of California for the following charges;Count 1: Conspiracy to Commit Wire Fraud, in violation of Title 18, United States Code (U.S.C) Section 1349, with a maximum penalty of 20 years in prison.Count 2: Conspiracy to Commit Money Laundering in violation of title 18, USC Section 1956 (H), with a maximum penalty of 20 years in prison.Count 3: Aggravated Identity Theft, in violation of Title 18, S.S.C Section 1028 A(a)(1) and 2(a), with a maximum Penalty of 2 years in prison.

3. The Respondent averred that the Applicant absconded from the jurisdiction of that court and fled to Kenya. His presence in Kenya was discovered leading to his arrest and presentation before the Chief Magistrate’s Court, Nairobi for the purpose hearing the extradition request made by the Director of Public Prosecutions on behalf of the Government of the United States of America. The application is pending determination before that court.

4. However, the Applicant applied to be admitted on bail/bond pending the hearing and determination of the extradition proceedings before the trial court. The trial court declined to grant the applicant bail citing among other reasons that the applicant was a flight risk and likely to abscond court.

5. Dissatisfied with the Ruling denying him bail, the Applicant applied for revision of that Ruling vide a Notice of Motion application dated 9th February, 2022 wherein he sought for orders:-a.Spent;b.The Honourable Court be pleased to call for and examine the record of proceedings in Milimani Criminal Case No.E4167 of 2021 for the purpose of satisfying itself as to the correctness, legality or propriety of the orders Denying Bailmade herein on 25th January, 2022. c.The Honourable court be pleased to review the orders issued in Milimani Criminal Case No.E4167 of 2021 pending trial and admit the Applicants to bail/Bond at such terms as it deems fit.d.This Honourable Court be pleased to issue such other or further orders as it may deem just and expedient.e.That there be no orders as to costs.

6. The application is premised on eleven (11) grounds on its face and further supported by the affidavit of his advocate, M/S Wandugi Kiiru Karathe sworn on even date. The substance of the application is that the applicant is a Kenyan Citizen with well-known family and public ties and has all along been cooperative with the on-going investigations done on him. That while bail/bond is a constitutional right, the trial court denied the Applicant bond terms without any compelling reasons. In the Applicant’s view, since the offence he is facing is bailable, it is unjust and discriminatory to deny him bail without compelling reasons being shown.

7. The State opposed the application through the Affidavit of No.236791 C.I Judith Karambu, the Investigating Officer in this matter. She reiterated that the Applicant having been shown to be a flight risk for having passports which are non-documented, is justifiable reason to deny him bail. In her view, the present application has been maliciously made to delay the extradition proceedings since the trial correctly based its decision on the laid down guidelines on bail and bond and there are no new circumstances that have been adduced by the Applicant to warrant the interference of the trial court’s decision.

8. The application was disposed by way of oral submissions with learned counsels, Mr. Wandugi, Mr. Danstan and M/S Martina all appearing for the applicant whilst M/S Mwaniki submitted on behalf of the state.

9. The gist of the Applicant’s submissions is that the trial Magistrate misdirected herself in finding that there were compelling reasons to deny the Applicant release on bail. Further, that the trial court disregarded the pre-bail report notwithstanding that it was favourable to the accused person. The court was the referred to the case of Thomas Muthui Nzei Cr. Case No.13 of 2019 and urged the court to admit the accused person to bail.

10. The Learned State Counsel, Ms. Mwaniki submitted that the Applicant has not properly approached the court having failed to invoke the proper provisions of the law. She urged this Court not to interfere with the discretionary powers of the trial Court unless the Ruling is illegal, which in her view it was not. She added that, no new evidence has been brought before the court to show that the trial Magistrate acted erroneously. In her view, Kenya is under an obligation to comply with the extradition request having ratified the Vienna Convention on Treaties.

11. On the contrary, the Applicant’s counsels in a rejoinder submitted that any Treaty or Convention ratified by Kenya does not override the Constitution. Further, that under the Bail and Bond Policy Guidelines, the Applicant is to be presumed innocent as opposed to being presumed a flight risk when there is no material placed before the court to confirm the allegations.

Analysis and Determination 12. I have considered the application, the affidavits filed by the parties both in support thereof and in opposition thereto as well as the oral submissions made together with the authorities cited and the applicable law. The underlying issue for determination is whether there is prima-facie evidence requiring this court to exercise its revisionary and supervisory discretion, to annul and/or set aside the trial court’s decision denying the Applicant release on bail/bond.

13. I wish to start by considering the provisions of Article 165(6) and (7) of the Constitution and Section 362 of the Criminal Procedure Code which provisions clothe this court with jurisdiction to determine an application occasioned by an impugned order of the trial court. These provisions read as follows:-Article 165(6) and (7) of the Constitution states that;(6). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7). For the purposes of clause (6), the High Court maycall for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.Section 362 of the Criminal Procedure Code provides as follows:“The High Court may 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 recorded or passed, and as to the regularity of any proceedings of any such subordinate court.”

14. It flows from the above provisions that the revisionary authority of the High Court can be initiated by an aggrieved party, or by a suo-moto order made by the court itself, to call for the record relating to the order passed so as to satisfy itself as to the legality, or propriety, or correctness, or irregularity of the order in question. Therefore, the High Court is bound to rehear the case and evaluate the evidence in totality and come up with a decision on the merits thereof.

15. In my view, the object of the revisionary jurisdiction is for the purpose of keeping the trial court within the bounds of its authority and make it act according to the procedure established by the law and the defined principles thereof. I also fully associate myself with the finding in the case of Slaw Wallace & Co. Ltd -vs- Govindas Paru Slothamdas & Another [2001] 3 SCC 445, where the court observed thus;“in the High Court satisfying itself as to the regularity ofthe proceedings of the correctness, legality or propriety of any decision or order passed therein and if, on examination, it appears to the High Court that any such decision or order should be modified, annulled, reversed, or remitted for consideration it may pass such order accordingly.”

16. Thus, considering the above principles alongside the facts of the present case, can it be said that the decision by the trial Magistrate in denying the Applicant bail on the reason(s) cited was incorrect, illegal, irregular or had improprieties? It is important to first point out that an application by an accused person to be admitted to bail/bond is governed the provisions of Article 49 (1) (h) of the Constitution and Section 123, 123A, 124, 125 and 127, all of the Criminal Procedure Code (Cap 75 of the Laws of Kenya).

17. Article 49(i)(h) of the Constitution provides-“An arrested person has the right- to be released on bond or bail or reasonable conditions, pending, a charge or trial unless there are compelling reasons not to be released.Section 123(3) of the Criminal Procedure Code provides;“The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced.”Section 123A of the Criminal Procedure Code provides;(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—(a)the nature or seriousness of the offence;(b)the character, antecedents, associations and community ties of the accused person;(c)the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;(d)the strength of the evidence of his having committed the offence;(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person –(a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;

18. From the above provisions, it can be deduced that where an accused person is indicted before a court for a cognizable offence, he/she has the right to be released on bail save where the prosecution demonstrates that compelling reasons exists for him/her not to be released on bail. Neither the Constitution nor the Criminal Procedure Code spell out what constitutes “compelling reason”. One thing is however clear in both that the onus of demonstrating that there exist “compelling reasons” lies with the prosecution.

19. In the case of Republic –vs- Joktan Mayende and 3 Others, Bungoma HCCR. Case No.55 of 2009, Judge F. Gikonyo described it thus;“The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bond should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the constitution.

20. In addition, the Judiciary’s Bail and Bond Policy Guidelines of 2015 points out some of the compelling reasons to be considered by the courts as the seriousness of the offence, the strength of the case, interference of witnesses, possible failure of the accused to attend or where the accused is charged with another case, the need to protect the victim(s), the security and safety of the accused, and the likelihood of absconding from the jurisdiction of the court.

21. In considering whether any of the listed compelling reasons relate to the Applicant, the trial court made a conclusion that some of the circumstances raised as a red flag so as to implicate the Applicant as a flight risk include, the fact that the accused person was said to have two passports in his possession, one which is not registered, that he has close ties in Uganda and Tanzania where he once lived, that despite the fact that he dropped out of school due to truancy, he faces serious crimes of money laundering. Also, the trial court was of the view that since the accused person travels alot, he is likely to escape the jurisdiction and supervision of that court.

22. In my view, in evaluating whether there exist compelling factors, a court requires a wholistic approach and must, in close circumspection, take into account the circumstances of the case and the party individually while bearing in mind that the accused is to be presumed innocent until the contrary is shown.

23. To begin with, by considering the seriousness of the offence, the Applicant herein faces extradition proceedings and the only determination the trial court is to make is whether an application for extraditing the Applicant is in line with the procedure laid/set out in Extradition (Contagious and Foreign Countries) ActChapter 76 Laws of Kenya before an order is made or not. Therefore, the seriousness of the offence should primarily be based on the extradition proceedings and the possibility of the Applicant absconding the extradition proceedings as opposed to weighing the same against the offences the Applicant is indicted of before the United States District Court for the Central District of California.

24. In addition, I subscribe to the observation that the seriousness of an offence is deduced from the punishment to be imposed if the applicant is found guilty. Thus, where the punishment is heavy, there is a higher possibility and incentive for an accused person to abscond. In the applicant’s case, I am not persuaded that the extradition proceedings are of high gravity to warrant the denial of bail. The extradition proceedings should only be limited to the process and requirements of extradition by its extraditing country. Even taking into consideration the nature of offences the Applicant is to face before the United States District Court, I find the same would attract maximum sentence of twenty (20) years in total. Infact, the sentences are outlined for specific offences. Also, its upon that court to decide on what sentence the Applicant should serve if found guilty. In that case, that is not compelling reason to extinguish the Applicant’s right to bail in extradition proceedings, which are just procedural. The Applicant is not fearing any charge before the trial court.

25. Secondly, the trial court considered that the Applicant is a flight risk due to the fact that he possess two passports, one of which is not documented and that he has close ties in other countries hence he is likely to abscond. I have considered the pre-bail report which indicates that the Applicant has a fixed abode, and resides at Oasis Villas in Kilimani together with his wife and three children. He is also said to have close community ties in that vicinity and operates a Consultancy business in an office situated at Flamingo Tower in Upper Hill. The report goes on to state that his extended family resides in Lavington, and he was not reported to pose any threat to the society or any traceable witness in the charges he faces. Further, it has been reported that his family is also willing to stand as sureties and ensure that the Applicant attends court whenever he is required until the proceedings are finalised.

26. From the findings in that report, I do not find any cogent and compelling reasons to deny the Applicant bail. In view of this, I find that the trial court erred by proceeding to deny the Applicant release on bail/bond on grounds such as having close ties outside the country, traveling a lot, or even possessing two passports as grounds to prove that he is a flight risk when it was seized of the social inquiry report by the Probation Officer. Moreover, the reasons relied upon by the trial court to reach its conclusion are based on mere speculation without any tangible proof to deny one a constitutional right of release on bail/bond.

27. Pursuant to the provisions of Section 124 of the Criminal Procedure Code, the purpose of bond is to secure attendance of an accused person during the trial. At this stage, the court is not required to scrutinize the evidence available against a suspect for the charges he is to be indicted for, in deciding on whether to admit the accused on bail/bond or not. It is required to consider with caution, whether the accused is likely to interfere with the evidence/witnesses or is likely to abscond if released on bail which is not the case here. Nonetheless, the terms imposed should not be such that it amounts to denial of the constitutional right of the accused to be released on bail pending trial. After all, it is a cardinal principle in criminal trials that an accused person is presumed to be innocent until proven guilty at the end of a trial. I am therefore satisfied that there are sufficient grounds to support the claim of incorrectness, irregularity and impropriety of the trial court’s Ruling denying the Applicant his constitutional right of release on bail/bond terms.

28. This court, in its supervisory jurisdiction is duty bound to correct those errors by exercising its power of revision under Section 362 as read with Section 364(1)(b) of the Criminal Procedure Code and Section 123(3) of the Criminal Procedure Code which inter alia grants this court jurisdiction to direct that an accused person be admitted to bail or bond pending trial.

29. Consequently, this court finds merit in the Applicant’s application dated 9th February, 2022 and the same is hereby allowed on the terms that the Ruling of the trial court delivered by the trial court on 25th January, 2022 be and is hereby set aside. The orders made in the said Ruling are thus substituted by orders of this court granting the Applicant release on bond in the following terms:-a.The Applicant to be released on a bond in the sum of KShs.1,000,000/= with one surety of a similar amount.b.The surety shall be approved by the trial court with the participation of the prosecuting counsel.c.The Applicant to provide details and particulars of a contact person with regard to actual place of abode and business.d.The Applicant shall attend court without fail whenever he is required until the proceedings against him are finalized.e.Failure to comply with any of the above directions, the bond terms shall be revoked.f.I direct that the original record be returned to the trial court for the on-going extradition proceedings to be conducted expeditiously.

It is so ordered.RULING DELIVERED VIRTUALLY AT NAIROBI ON THIS 19TH DAY OF MAY, 2022. D. O CHEPKWONYJUDGEIn the presence of:M/S Martina alongside Mr. D. OmariMr. Wainaina counsel holding brief for Mr. Wandugi for M/s Mwaniki.