[2022] KEHC 13131 (KLR)

Kisang v Republic (Miscellaneous Application E057 of 2022) [2022] KEHC 13131 (KLR) (19 September 2022) (Ruling)

Neutral citation: [2022] KEHC 13131 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Application E057 of 2022

EKO Ogola, J

September 19, 2022

Between

Timothy Kibet Kisang

Applicant

and

Republic

Respondent

Ruling

1. The application before this court is a notice of motion application dated July 14, 2022 wherein the applicant seeks the following orders;1)Spent2)That this honourable court do call for and examine the record in Iten Principal Magistrate’s Court Criminal Case No E529 OF 2022 (Republic vs Timothy Kibet Kisang) and revise, review and set aside the ruling/order on bail and bond given on 14th day of July, 2022. 3)That this honourable court be pleased to make any such further order as it may deem fit.

2. The application is based on the grounds contained therein and in the supporting affidavit filed with the application. The facts underlying the present application are that the applicant was arrested and charged in court on the July 14, 2022 with one count of stealing by servant/ employee contrary to section 281 of thePenal Code. The trial court in its ruling gave a cash bail of Kenya Shillings Seven Hundred Thousand (Kshs 700,000/=).

3. The applicant being dissatisfied with the ruling, filed the present application. The applicant’s case is that he was arrested and charged in Iten Principal Magistrate’s Court vide Criminal Case No E529 OF 2022 with one count of stealing by servant/employee contrary to section 281 of the Penal Code. He was granted a cash bail of Kenya Shillings Seven Hundred Thousand (Kshs 700,000) on the same day without the option of bond which the applicant contends is punitive in the circumstances.

4. He approached this court to review, reversal and setting aside of the said bail terms and contended that the respondent will not suffer prejudice if the application is allowed.

5. There is no response of the respondent on record. I have perused the pleadings and the attachments contained therein and identified the issues for determination as;

Whether the Bail/bond Terms Should Be Reviewed 6. The rights of an accused person are provided for under the Constitution of Kenya 2010 as follows;49. (1)An arrested person has the right—hTo be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

7. The Judiciary’s Bail and Bond Policy Guidelines at p.9 paragraph 3. 1 (d) emphasises the right to reasonable bail and bond terms as follows:d)Right to reasonable bail and bond terms:Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.

8. The jurisdiction of the High Court to review a trial court’s decision on bail and the conditions therein is provided under section 123 (3) of the Criminal Procedure Codeas follows:123. Bail in certain cases(1)When a person, other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any related offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.(2)The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.(3)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.

9. The upshot of the foregoing is that the conditions for release on bail or bond must be reasonably necessary to ensure the attendance of the accused at the trial or proceedings. I have perused the record of the proceedings annexed to the further affidavit of the applicant dated July 25, 2022. It is clear that the trial magistrate while granting bail only gave the option of cash bail of kshs 700,000/- with no alternatives. The applicant should have been given an option for bond with surety. I note that the applicant’s issue with the cash bail is that it is the only option and that is punitive, thus, the issue of excessiveness has not been raised. Further, I have taken into consideration that the offence they are charged with carries a sentence of seven years’ imprisonment.

10. On the ground that the terms imposed by the trial court were unreasonable I will review the bail terms granted by the learned trial magistrate and order as follows: -1. The applicant will be released on cash bail of Kshs 700,000/= or alternatively on bond of Kshs 1,000,000/= with one surety of similar amount.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 19TH OF SEPTEMBER 2022. E. K. OGOLAJUDGE