[2022] KEHC 11104 (KLR)

Kipng'eno v Republic (Criminal Revision E015 of 2021) [2022] KEHC 11104 (KLR) (14 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11104 (KLR)

Republic of Kenya

In the High Court at Naivasha

Criminal Revision E015 of 2021

GWN Macharia, J

July 14, 2022

Between

Peter Ruto Kipng'eno

Applicant

and

Republic

Respondent

Ruling

1. The Applicant, Peter Ruto Kipng'eno, is currently facing a charge of causing death by dangerous driving contrary to Section 46 of the Traffic Act in Traffic Case No. 526 of 2020: Republic v Peter Ruto Kipng'eno at the Chief Magistrate’s court in Naivasha.

2. The Applicant approached this court vide a Notice of Motion dated 31st August 2021 seeking the following orders: -1. That this honourable court be pleased to recall Traffic Case No. 526 of 2020: Republic v Peter Ruto Kipng'eno for Revision.2. That this honourable court be pleased to vacate and/or set aside the orders issued by Hon. E. Mburu (SRM) on 16th August 2021 for forfeiture of cash bail.3. That this honourable court be pleased to vacate and/or set aside the orders issued by Hon. E. Mburu (SRM) on 8th September 2021 dismissing an application for reinstatement of the cash bail forfeited.4. That this honourable court be pleased to revise the order issued by Hon. E. Mburu (SRM) ordering fresh cash bail be deposited by the Applicant.5. That this honourable court be pleased to order reinstatement of the cash bail forfeited and a refund of the additional cash bail deposited on 8th September 2021. 6.That this honourable court do make any order it deems fit in the circumstances.

3. The application was brought under Article 49(1) (b), Article 50(1) of the Constitution, Sections 131, 132, 362, 364, 365, 366 & 367 of the Criminal Procedure Code and all other enabling provisions of the law. It is supported by the Applicant’s Affidavit in which he avers that he was granted cash bail of Kshs. 50,000/- pending trial. On 11th March, 2021, two prosecution witnesses testified then the Prosecution applied to amend the Charge Sheet. Thereafter, Naivasha Court station recorded a positive Covid-19 case and a notice was issued by the Chief Magistrate on 29th March, 2021 for closure of the station. The Chief Justice then ordered that the Station be closed to the public and all staff members were to self-isolate for 10 days. Further, the Government of Kenya issued cessation of movement orders on 26th March, 2021. Around the same time, the trial court changed its assistant who used to communicate dates to him when matters were coming up.

4. As a result, he never received any communication that the matter was in court on 31st March, 2021 as well as on subsequent dates namely 17th May, 2021, 7th June, 2021, 7th July, 2021 and 16th August, 2021 and therefore was absent in Court on those days and the trial magistrate issued warrants of arrest. On 16th August, 2021, the trial Court forfeited the cash bail in his absence and slated a mention date for 8th September, 2021 which date was communicated to him by the Investigating Officer, Cpl. Obare. He presented himself in Court on 8th September, 2021 and upon an application by his Counsel to lift the warrants of arrest and reinstate the forfeited bail, the trial Court proceeded to lift the warrant of arrest but declined to reinstate the bail. The Court further ordered that he be released on further cash bail of Kshs. 30,000/-.

5. He is therefore aggrieved that he was not accorded an opportunity to be heard and/or to show-cause why the cash bail should not be forfeited before forfeiture considering that prior to the closure of court station due to the covid-19 case, he attended Court dutifully whenever the matter came up.

6. In response, the Respondent filed Grounds of Opposition contending that the learned magistrate's decision was appropriate and correct; the learned magistrate complied with the provisions of the law; the finding was based on evidence and circumstances on record; and, the learned magistrate exercised her judicial discretion fairly.

7. The application was disposed of by way of written submissions. The Applicant faulted the trial magistrate for failing to adhere to the procedure laid down under Section 131 of the Criminal Procedure of Code on forfeiture of bail. He submitted that the said provision requires the court to call upon an accused person to show cause or give reasons for non-attendance before bail is forfeited to the State. He relied on the cases ofJustus Kituva Kivindye v Republic[2020] eKLR, Dickson Kimathi v Republic[2014] eKLR, Abigael Cherono Soi v Republic[2021] eKLR, Patrick Gitari Mwiandu v Republic [2017] eKLR, Titus Mwangi Gabuthu v Republic [2019] eKLR andFlorence Muthoni Kamau v Republic[2021] eKLR where courts held similar views while discussing the importance of following the procedure under Section 131 of the Criminal Procedure Code.

8. On the other hand, it was submitted on behalf of the Respondent that the Applicant failed to show up in court on two occasions prior to the closure of the court station on account of covid-19 and five times after. The Respondent submitted that no plausible explanation was given to warrant the Applicant's non-attendance in the months of May, June, July and August 2021. Further, the Respondent contended that despite the fact that the Naivasha Law Courts was closed due to the prevailing covid-19 situation, most judicial staff were working from home and thus any party willing to access information from the Judiciary could have done so either by mail, telephone or physically accessing the Court.

9. The onus therefore lay on the Applicant and his counsel to follow up on the matter and find out the next date but from 31st March 2021, neither of them bothered to find out when the matter was coming up in court. In the Respondent’s view therefore, the Applicant was not vigilant in as far getting to know when he was required to attend court was concerned. Reliance was placed on Samuel Muthaura v Republic [2020] eKLR where the court declined to allow an application for revision of a trial court’s decision for forfeiture of bail.

10. I have considered the application by the Applicant, the Respondent’s Grounds of Opposition, the submissions by both counsel and the proceedings of the lower court.

11. Articles 165 (6) and (7) of the Constitution confers upon this Court supervisory jurisdiction over subordinate courts and empowers this Court to make any order and/or give any direction it considers appropriate to ensure fair administration of justice. The said Articles provide as follows:“(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 purpose of clause (6), the High Court may call for the record of any proceedings before any court or person, body of 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.”

12. Further, Section 362 of the Criminal Procedure Codeprovides 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.”

13. What the High Court can do under its revision jurisdiction is provided for under Section 364 of the Criminal Procedure Code as follows: -“(1) in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may –a.in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence: -b.in the case of any other order than an order of acquittal, alter or reverse the order.”

14. I have examined the trial court’s record. It is clear that the Applicant did not attend court on 31st March, 2021, 17th May, 2021, 7th June, 2021, 7th July, 2021 and 16th August, 2021. On 7th June, 2021, the matter was mentioned before Hon. Barasa (SRM) who issued a warrant of arrest on application by the prosecution. On 16th August, 2021, Hon. E. Mburu (SRM) extended the warrants of arrest and forfeited the cash bail in the absence of the Applicant. When the Applicant appeared in court on 8th September, 2021, the warrant was cancelled upon an application by his counsel and the court ordered the Applicant to deposit a further cash bail of Kshs. 30,000/-.

15. Section 131 of the Criminal Procedure Code sets out the procedure of forfeiture of recognizance 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)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.”1. On 16th August, 2021 when the learned trial magistrate made the forfeiture order, the procedure set out under Section 131 of the CPC was not followed.

18. In Dickson Kimathi v Republic [2014] eKLR, Lesiit, J (she then was) stated that:“No forfeiture can legally be made before giving an opportunity to the person who will be adversely affected by such order an opportunity to show cause why the forfeiture should not be made. In this case, the order was made on the first day the Applicant failed to appear in court. He had not been given an opportunity to be heard. The order was made in contravention of section 131 of the CPC. It was also against the rule of natural justice. The order was clearly irregular, unprocedural and in the circumstances illegal.”

19. In Justus Kituva Kivindye v Republic[2020] eKLR cited by the Applicant herein, Odunga J cited the decision in Abdiaziz Haji Mohammed v Republic [2007] eKLR where Ojwang J. (as he then was) held that:“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 forfeited. 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."

20. Similarly, in the instant case, the trial court’s record clearly shows that the learned trial magistrate did not follow the procedure under Section 131 of the Criminal Procedure Code prior to declaring the bail forfeit. The order was made in the absence of the Applicant without according him an opportunity to show cause why he failed to present himself in court. In the premises, I find that the proceedings leading to forfeiture of the Applicant’s bail were irregular.

21. In the upshot, I allow the Applicant’s application. The orders of 16th August, 2021 and 8th September, 2021 forfeiting cash bail and calling for deposit of fresh cash bail respectively are hereby set aside. I order that the forfeited cash bail of Kshs. 50,000/- be reinstated and the Applicant be refunded the fresh cash bail deposit of Kshs. 30,000/-. The trial court file shall be mentioned before the trial court on 26th July, 2022 for purposes of granting a hearing date.

22. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 14TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:Mr. Kimanzi for the Applicant.Miss Maingi for the Respondent.