[2017] KEHC 4258 (KLR)
The court found that the applicant's absence from court, which resulted in the forfeiture of his cash bail, was claimed to be due to his incarceration at the relevant time. However, the applicant must provide evidence to substantiate this claim. The court therefore directed the applicant to avail evidence of his...
Source-derived case information.
- Citation
- [2017] KEHC 4258 (KLR)
- Parties
- Applicant: Justus Okwiri Ouma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 6 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Forfeiture of Cash Bail
- Outcome
- interim orders issued; application for setting aside forfeiture deferred pending evidence
- Judges
- AC Mrima
- Legal Topics
- Bail Forfeiture, Remand Procedure, Application to Set Aside Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Justus Okwiri Ouma
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Forfeiture of Cash Bail
Legal Issues
- 1 Whether the order of forfeiture of the applicant's cash bail should be set aside.
- 2 Whether the applicant's absence from court was justified by incarceration.
- 3 Whether the applicant is entitled to reinstatement of the cash bail to secure release in a subsequent criminal case.
Ratio Decidendi
The court found that the applicant's absence from court, which resulted in the forfeiture of his cash bail, was claimed to be due to his incarceration at the relevant time. However, the applicant must provide evidence to substantiate this claim. The court therefore directed the applicant to avail evidence of his incarceration during the period in question. The court did not immediately set aside the forfeiture order but allowed the applicant an opportunity to prove his claim, and fixed the matter for mention to consider the evidence. The court also directed that the related criminal case proceed for hearing, ensuring that the applicant's rights are preserved pending further verification.
Court Disposition
interim orders issued; application for setting aside forfeiture deferred pending evidence
Orders
- The court file in Migori Chief Magistrate’s Criminal Case No. 787 of 2016 Republic vs. Justus Okwiri Ouma shall be returned to the trial court for further hearing and is fixed for mention on 12/06/2017.
- The applicant shall avail evidence that he was incarcerated during the time he was required to appear before the trial court in Migori Chief Magistrate’s Criminal Case No. 865 of 2015.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
MISC. CRIMINAL APPLN. NO. 6 OF 2017
JUSTUS OKWIRI OUMA………………...............................................APPLICANT
-versus-
REPUBLIC.........................................................................................RESPONDENT
RULING
1. By a Notice of Motion filed on 21/03/2017, the Applicant prayed for an order to set aside the order of forfeiture of his cash bail of Kshs. 10,000/= made by Hon. M. M. Wachira, Senior Resident Magistrate, on 26/10/2016 in Migori Chief Magistrate’s Criminal Case No. 865 of 2015 Republic vs. Justus Okwiri Ouma. The case was withdrawn on 18/11/2016.
2. He contends that his failure to attend the hearing of that criminal case was a result of having been arrested by the police and remanded at the Migori G.K. Prison and that he could only appear in court on a Production Order.
3. He was however charged afresh in Migori Chief Magistrate’s Criminal Case No. 787 of 2016 Republic vs. Justus Okwiri Ouma which case is at defence hearing.
4. The Applicant further contends that his pleas before the trial court were not successful and as such he has remained in remand due to inability to raise a further Kshs. 10,000/= cash bail. He prays that his cash bond in Criminal Case No. 865 of 2015 be reinstated to him to secure his release from remand in Criminal Case No. 787 of 2016 since he is an ailing cancer patient.
5. This Court called for both lower court files and has carefully perused them. I note that the Applicant participated fully in Criminal Case No. 787 of 2016 and was ready for his defence before this application.
6. Having considered all issues in these matters, I hereby make the following orders: -
(a) The Court file in Migori Chief Magistrate’s Criminal Case No. 787 of 2016 Republic vs. Justus Okwiri Ouma shall be forthwith returned to the trial court for further hearing. To that end, the same is hereby fixed for a Mention on 12/06/2017 before the trial court;
(b) The Applicant shall avail evidence that he was incarcerated during the time when he was required to appear before the trial court in Migori Chief Magistrate’s Criminal Case No. 865 of 2015 Republic vs. Justus Okwiri Ouma.
(c) This matter is hereby fixed for a Mention on 14/06/2017.
Orders accordingly.
DATED, SIGNED and DELIVERED at MIGORI this 6th day of June 2017.
A. C. MRIMA
JUDGE