[2022] KEHC 2973 (KLR)

Kihoro v Republic (Miscellaneous Criminal Application E019 of 2022) [2022] KEHC 2973 (KLR) (16 May 2022) (Ruling)

Neutral citation: [2022] KEHC 2973 (KLR)

Republic of Kenya

In the High Court at Machakos

Miscellaneous Criminal Application E019 of 2022

GV Odunga, J

May 16, 2022

Between

Hiram Ndirangu Kihoro

Applicant

and

Republic

Prosecution

Ruling

1. According to the applicant, he was charged with the offence of obtaining money by false pretences contrary to section 313 before Mavoko Chief Magistrate’s Court in Criminal Case No. 60 of 2018. On 13th February, 2020, he was released on a bond of Kshs 300,000/- with surety of similar amount. According to him, by the time of his release from prison, there was an order of this Court issued in Miscellaneous Application No. 181 of 2019 which stayed the proceedings which application was determined in the month of September/October, 2021.

2. Due to the fact that the lower court file had been called for by the High Court, he was unable to get a date fixed before the trial court. He deposed that though he dutifully and faithfully attended court proceedings whenever required to do so, each time he went to court he was informed that his file was yet to be returned to the trial court. However, on 21st February, 2022, he received information that he was being sought for by police as there was a warrant of arrest out for him issued on 15th February, 2022. According to him, he was unaware that his attendance was required on that day and that a check on the cause list for that day did not reveal that his matter was listed.

3. According to the applicant both the trial magistrate and the prosecutor were not happy with his action of filing an application before this court hence it was his view that the issuance of the warrant could have been in furtherance of the same feelings.

4. He therefore sought that the warrant of arrest issued against him be lifted and that his bond terms be reinstated. He further sought for change of jurisdiction for the hearing of his case as he was apprehensive that he might not receive a fair trial. He prayed that in that event the haring ought to commence de novo.

5. This application was not opposed.

6. Section 131 of the Criminal Procedure Code provides as follows: 131. (1)Whenever it is proved to the satisfaction of a court by which a recognizance under this Code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.(2)If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.(3)A warrant may be executed within the local limits of the jurisdiction of the court which issued it; and it shall authorize the attachment and sale of the movable property belonging to the person without those limits, when endorsed by a magistrate within the local limits of whose jurisdiction the property is found.(4)If the penalty is not paid and cannot be recovered by attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term not exceeding six months.(5)The court may remit a portion of the penalty mentioned and enforce payment in part only.(6)When a person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his recognizance, a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties, and, if the certified copy is so used, the court shall presume that the offence was committed by him unless the contrary is proved.

7. The said section provides the procedure to be followed before an order for forfeiture is made. That section was the subject of the case of Abdiaziz Haji Mohammed vs. Republic [2007] eKLR where Ojwang, J (as he then was) held as follows:“Section 131 of the Criminal Procedure Code (Cap.75) requires the Court to call upon an accused person to show cause, before bail is declared forfeit. It is common ground here, as is deponed [sic] by the applicant, that the said opportunity was not provided, before the applicant’s bail was forfeited. On this state of fact [sic], it is clear that justice requires that the Kshs. 100,000/= bail which had been paid into Court by the applicant, be reinstated.”

8. In this case, since the application was not opposed, there is no evidence that the procedure for cancellation of bail was adhered to.

9. With respect to the circumstances under which this Court transfers a case from one magistrate to another, Trevelyan, J in Shilenje vs. The Republic[1980] KLR 132, held that:“On the authority of such case as Re M S Patel's Application[1913] 5 KLR 66 and The Republic v Hashimu[1968] EA 656 (a Tanganyika case), I am asked to say that the application should be granted if I am satisfied that a clear case has been made out that the applicant has a reasonable apprehension in his mind that he will not have a fair and impartial trial before the magistrate; and save, that I would rather use my expression “a real apprehension, honestly held and reasonably based” for “reasonable apprehension”, I would not quarrel with that. But I am asked, also, on the authority of later English decisions such as Metro-politan Properties Co (F G C) Ltd v Lannon[1969] 1 QB 577 and Hannam v Bradford City Council[1970] 2 All ER 690 to hold (if I understood counsel correctly) that the question falls (in the end) to be resolved on the basis that, if right-minded people would have a suspicion that a fair trial was not to be had, that is enough to require the application to be granted. I would like to go into the question a little more closely than that; and I derive much help from the commentaries upon section 526 of the Indian Code of Criminal Procedure 1908 made by two eminent writers, both former judges, Sir H T Prinsep and Sir John Woodroffe, i.e the former’s Commentary and Notes (14th Edn) and the latter’s Criminal Procedure in British India (1926). On page 646 of Prinsep we find:‘The High Court will always require some very strong grounds for transferring a case from one judicial officer to another, if it is stated that a fair and impartial inquiry or trial cannot be held by him, especially when the statement implies a personal censure on such officer.’ and I endorse entirely. It would be thoroughly unfair to such officers were it otherwise. At page 647 we have:‘What the court has to consider is not merely the question whether there has been any real bias in the mind of the presiding judge against the accused, but also whether incidents have not happened which, though they may be susceptible of explanation and have happened without there being any real bias in the mind of the judge, are nevertheless such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. It is not every apprehension of this sort which would be taken into consideration, but when it is of a reasonable character, and not withstanding that there was to be no real bias on the matter, the fact that incidents have taken place calculated to raise such reasonable apprehension ought to be a ground for ordering a transfer.’Again I agree; it is, as it were, the objective approach to the problem supplementing the subjective approach which I have just previously set out. Then we have:‘Whether such apprehension is reasonable must be determined with reference to the mind of the court rather than to the mind of the accused. The court cannot accept as reasonable grounds what the judges know to be insufficient and unreasonable, simply because the litigants were foolish enough to entertain them. To do so would be to encourage a distrust in the integrity and independence of the courts which would amount to a serious evil.’which also must be so, or so I think. Then it is said:‘But although each of the several grounds imputing bias may not be sufficient in itself for ordering the transfer of a case to another court, they may, taken together form reasonable grounds for the accused apprehending that he may not have a fair trial.’which again, as I think, must be so. And finally, on page 648 we have:‘It is the duty of the court to have regard to the importance of securing the confidence of the public generally, of every section of the community, in the fairness and impartiality of the trial that is to be held, and it is equally its duty to see that no undue regard is shown to the abnormal susceptibilities of any section of the public from an apprehension of ulterior consequences.’Which I am prepared to accept; but this does not relieve the court from resolving the question on the evidence before it in the light of what the section under discussion provides, which is what, as I understood it, counsel for the respondent urged upon me.On pages 612 and 613 of Woodroffe, we have:“…This clause deals with the case in which the High Court is satisfied that a fair and impartial inquiry cannot in fact be had; but such cases are rare, for to move a case from one magistrate to another on grounds personal to him is tantamount to a severe censure of such officer and the very clearest grounds must exist before the High Court will interfere…A more ordinary class of case is that in which, the High Court is not of itself of opinion that affair and impartial inquiry cannot be had yet a party has reasonable grounds for the apprehension that he will not have affair trial which is another matter. It is not sufficient that justice is done; but it must also appear to have been done. The law in such a case has regard not so much to the motive which might be supposed to bias a judge as to susceptibilities of the litigant parties. One important object is to clear away everything which might engender suspicion or distrust of the tribunal and thus to promote the feeling of confidence in the administration of justice which is essential to social order and security…The transfer of a case will therefore be granted not on the ground that the judicial officer is incapable of performing his duty, but simply to allay the apprehension of the applicant for transfer…The question in such cases is not whether there is actual bias…but whether there is reasonable…ground for suspecting bias…and whether incidents may have happened which, though they might be susceptible to explanation and may have happened without there being any real bias in the mind of the judge, are nevertheless such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial…The necessary condition, however, for the transfer in such a case is that the apprehension to justify a transfer must be reasonable, that is, the court ought not to be guided by the impressions produced in his own mind as to the impartiality of the magistrate, but must look to the effect likely to be produced in the mind of the parties to the action of the magistrate…Abstract reasonableness, however, ought not to be the standard…’Which, if not precisely the same as Prinsep, is in line with it.”

10. It is recognized that "It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities but also that such officials avoid, as much as possible, the appearance of impropriety." (People vs. Rhodes(1974) 12 Cal. 3d 180, 185 [115 Cal. Rptr. 235, 524 P.2d 363]).

11. The principles that emanate from the foregoing are that in order to justify transfer of a case from one judicial officer to another, there ought to be a real apprehension, honestly held and reasonably based that the accused may not have a fair and impartial trial. Accordingly, some very strong grounds are required for transferring a case from one judicial officer to another. However, though incidents have not happened which, though they may be susceptible of explanation and have happened without there being any real bias in the mind of the judge, they may, nevertheless be such as are calculated to create in the mind of the accused a reasonable apprehension that he may not have a fair and impartial trial. Whether such apprehension is reasonable must be determined with reference to the mind of the court rather than to the mind of the accused since the court cannot accept as reasonable grounds what the judges know to be insufficient and unreasonable, simply because the litigants are unreasonably foolish enough to entertain them. To do so would be to encourage a distrust in the integrity and independence of the courts yet it is the duty of the court to have regard to the importance of securing the confidence of the public generally, of every section of the community, in the fairness and impartiality of the trial that is to be held. It is equally, its duty to see that no undue regard is shown to the abnormal susceptibilities of any section of the public from an apprehension of ulterior consequences. With regard to transfer of cases on grounds that a fair and impartial inquiry cannot in fact be had, cases which are very rare to come by, on grounds personal to the judicial officer, is tantamount to a severe censure of such officer and the very clearest grounds must exist before the High Court will interfere.

12. In this case as I have stated hereinabove, the applicant’s application is based on the fact that his bail was cancelled and he speculated that the decision must have been informed by his application to this court.

13. Having considered the facts raised in this application, I am not satisfied that the applicant has proved that there is a real apprehension, honestly held and reasonably based, that he has or will not receive a fair and impartial trial from the trial Magistrate.

14. Therefore, while I find that the proceedings leading to the cancellation of bail were irregular, I find no basis to have the matter heard before a different judicial officer. Accordingly, I set aside the order cancelling his bail and order that the bail which was posted by the applicant before the trial court be reinstated. I however decline to have the matter transferred to another judicial officer for hearing.

15. It is so ordered.

RULING READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 16TH DAY OF MAY, 2022. G. V. ODUNGAJUDGEIn the presence of:Ms Njeru for the RespondentCA Susan