[2023] KEHC 25494 (KLR)

Kiswili v Republic (Criminal Revision E296 of 2023) [2023] KEHC 25494 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25494 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Revision E296 of 2023

EM Muriithi, J

November 14, 2023

Between

Festus Kalulu Kiswili

Applicant

and

Republic

Respondent

Ruling

Introduction 1. By a letter dated 5/9/2023 written by M/S Kitheka & Ouma Advocates, the applicant who is the accused in Meru Chief Magistrate’s Court Criminal Case No. E/201/2023 seeks revision of the terms of bail granted to him by the trial court in as follows:“Ref: Application For Revision Of Court Orders Issued On 5th September 2023 With Regard To Meru Criminal Case No. E201 Of 2023 Republic -v- Festus Kalulu KiswiliThe above matter refers.1. Your Lordship, we hereby write to humbly seek Revision Orders in respect of the above stated matter.2. The Senior Resident Magistrate, Hon. Maureen Odhiambo today the 5th day of September, Meru Criminal Case No. E/201/2023 2023, in Meru Criminal Case No. E/201/2023 granted the Accused Person a bond of Kshs.10,000,000/= with a Surety of similar amount.3. That the bond is inordinately high and the Accused Person's family and/or friends cannot afford to satisfy these terms or at all.4. That the bond terms ought to be reasonable and are meant to ensure that the Accused Person turns up in Court and NOT punitive and/or unaffordable so as to punish the Accused Person.5. The Accused Person is a resident of Meru and lives with his wife and three (3) School-going Children at Kithoka in Meru.6. The Accused Person hails from Makueni County where Land is of very nominal value to enable the family members stand surety for the Accused Person.7. That bond is a Constitutional right and ought to be reasonable in all circumstances.Reasons whereof we seek for the following Orders:-a)That the Application be certified as urgent and be heard on a priority basis.b)That the Honourable Court revise the bond terms issued on 5/09/2023 by the Senior Resident Magistrate, Hon. Maureen Odhiambo in Criminal Case No. E201/2023 to reasonable and affordable bond terms.”

2. Of the 12 criminal charges related to fraudulent obtaining faced by the accused, Count No. I on obtaining by false pretence c/s 313 of the Penal Code gives the value of the amount allegedly stolen as Ksh.49,448,000/- as follows:“Count I: Obtaining by false pretence contrary to section 313 of the Penal Code.Particulars: Festus Kalulu Kiswili: On Diverse dates between May 2019 and July Particulars 2023 at Meru Township in Imenti North Sub-County within Meru County, jointly with others not before court, with intent to defraud, you obtained from Morris Mutuma Mwiti a sum of Kshs. 49, 448,000/= (Forty-Nine Million, four hundred forty-eight Thousand Kenyan shillings) by falsely pretending that you are in position to secure Registration of Utuwema Merchants (k) Limited And Added Power (k) Limited companies owned by Morris Mutuma Mwiti with Batteries and Electronic Manufacturing Companies from Egypt and Tanzania who were issuing loans to Kenya local companies, a fact you knew to be false.”

Responses 3. The revision of the bail terms was opposed by the complainant in the criminal case Meru Chief Magistrate’s Court Criminal Case No. E/201/2023 who filed a Replying Affidavit sworn on 15/9/2023 urging that the applicant is a flight risk as follows:“I Morris Mutuma Mwiti of P.O. Box 3222-60200 Meru do hereby make oath and state as follows:1. That I am the complainant in criminal case no E1201/2023 well versed with the facts of this case.2. That I have read and understood the application before court and it is in response thereto that I make and swear this application.3. That the applicant has been charged with twelve(12) counts of very serious nature and involving stealing kshs.49,448,0001= from me as well as forging documents from the embassy of Egypt as well as Tanzania.4. That in granting bond the court considered the submissions by the prosecution coupled with ours to the effect that the applicant was a flight risk especially being in possession of forged documents from the embassies of Egypt and Tanzania which would have easily enabled him leave the jurisdiction. Annexed and marked MMl are copies of the said documents.5. That the court in considering the above granted him reasonable bond terms and ordered him to deposit his passport in court.6. That the accused person has no fixed bode and that can be ascertained from his application whereby he claims to live in Meru as well as Makueni.7. That the court in granting bond has to balance the interest of the accused and that of the complainant.8. That we pray the bond terms granted be allowed to stand.”

4. The DPP opposed the application for revision by way of Grounds of Opposition dated 11/10/2023as follows:“Respondent's Grounds Of Opposition1. The duty to grant bail or bond and under what terms is discretional and exercisable in the first instance by the trial court.2. The judicial discretion in the grant of bail or bond terms to the applicant was exercised judiciously by the trial court.3. The trial court arrived at an informed decision on the issue of bail or bond terms based on submissions made by the applicant and respondent.4. The applicant has advanced new grounds seeking review of bail or bond terms which ought to be made before the trial court in the first instance and a revision or appeal would follow upon dissatisfaction.5. The applicant's application is not set within the parameters of Section 362 of the Criminal Procedure Code for incorrectness, illegality or impropriety.6. The application lacks merit and pray that it be dismissed accordingly.

Submissions 5. The Court then heard oral arguments of the Counsel for the Prosecution, the accused and the complainant in proceedings of 16/10/2023 set out below and ruling was reserved:“16/10/2023Mr Mwanzia for the applicantCounsel cited 1. Eliud Muli Musyoka v Republic [2022] eKLR; 2. Edel Sum v Republic [2022] eKLR And 3. Cyril Kipruto Serem v Republic [2020] eKLR and urged as follows:The applicant seeks revision of bail by letter of 5/9/2023. The trial court granted bond of Ksh.10 million with surety of similar amount. Accused charged with various counts related to obtaining money by false pretence to uttering false documents. The applicant and complainant are co-directors in Added Power (K) Ltd. I refer to Kipruto Serem v. R (2020) eKLRThe court appears to apply the amount of value of subject matter as the bond. The higher the value of amount is high the higher the bond terms. Courts must ensure that bail conditions are reasonable and not excessive as this will lead to de facto imprisonment and a violation of Article 49 of the Constitution. It is the case here.Applicant took plea on 5/9/2023. It is today 16/10/2023. The bond is too high and he is thus still in custody. The propriety of the finding of the trial court is wrong. We pray for revision under section 362 of the CPC to review the bond terms. I also rely on section 123 of the CPC which provides that the court may admit bail or that bail required by subordinate court may be reduced. The bond required by trial court is 10,000,000/-. We pray that it be reduced. I refer to Edel Sum v. R (2022) eKLR. The court had a chance to hear a similar application and at p.2 of 3, the court noted that the key word is reasonable. The purpose is to ensure that accused attends court.The previous Bail that the accused had ben given. On 31/8/2023, the accused was brought before the magistrate and given a bond of Ksh.100,000/- with a condition that he cooperates with investigation and appear before DCI on any day required. He complied with the bond terms. He deposited his passport and he presented himself for plea taking. The trial court id not consider these facts when granting bond.Accused reside sin Meru. His family is here and his children at Meru Consolata. He resides at Kithoka Estate.Replying Affidavit that he is a flight risk. His ancestral home at Makueni is also known as DCI was there. His business is at Meru town. He is not a flight risk.Trial court did not have in mind the importance of the right to liberty and presumption of innocence. He is only on trial. Bail should not be more than is necessary to guarantee his appearance in court. I refer to Eliud Muli Musyoka v R (2022) eKLR at paragraph 24. The Court considered the Bail Guidelines that bail should be reasonable and importance should be given to right to liberty and presumption of innocence.Applicant has been asked to raise 10million bond. To order 10million bond is to incarcerate him without a fair chance. We pray that bail be reduced to a reasonable amount. Even Ksh.500,000/- with a surety will ensure attendance.Affidavit detailing the business rivalry. He states that his co-director wants him out of the way so that he can deal with the company. He prays that for a fair trial bail should be reduced. The case is actually more of a civil nature than criminal where co-directors disagree on funds of the company. Evidence by Directorate of Criminal Investigation (DCI) has not been served todate. He is yet to know what is happening.Mr. K Muriuki for the ComplainantWe filed a Replying Affidavit. We rely on the affidavit. We state that granting bond s discretionary. The trial court was seized of the circumstances and it meted out a bond of Ksh.10 million with one surety.Offences are not only against the complainant. They are also against the state. Forgery of documents of embassies. The feud between the applicant and the complainant is neither here nor there.The other issues are extraneous. Whether there is a disagreement as to profits. The bond of 100,000/- was on a miscellaneous application when no charges had been levelled by then. When he was arraigned with more than 10 serious felony. The court should balance the right of the accused versus right of the complainant. It is not absolute.Bond terms were pegged on the value. The ruling of the lower court was not attached. It is submissions form the bar not supported by any evidence. The trial court had all reasons to grant the bail it granted and we pray that the same should not be disturbed. Each case hs its own set of facts and he authorities are distinguishable and they are not on all fours. Bail is an issue of discretion.Mr. Masila for DPPI associate myself with submissions of counsel for the complainant. This is a revision application which looks into illegality, impropriety of eh decision by the trial court. From the look of proceedings before the trial court, applicant and State fully argued and the determination by the trial court considered all the parties, the state, accused and the victim.From the ruling, the trial court considered the seriousness of the offences and granted the Ksh.10 million bind to the applicant. Looking at the Bail and Bond policy Guidelines, there are a number of factors the court considers before it grants bail.The state opposed bail but the court granted bail as we did not have compelling reasons for denial of bail. The bond term of Ksh.10 million. It does not mean that eh accused has been judged guilty. He is still innocent.The submission that the mater more of a civil and not criminal - Counsel knows how to move the court as it is a revision on the aspect of bond.Charge sheet. Applicant has been charged with 12 counts. Count I involves Ksh.49 million and he trial court did not grant a bond of ksh49 million but of Ksh.10million.Issues of bind are in the discretion of the trial court and the discretion was not abused. I urge the court that eh applicant should go back to the trial court and seek a review of the same.Paragraph 6 of the letter of 5/9/2023 - the issue was not canvassed before the trial court. They are new issues brought to the High Court under an application for revision.Bond terms can be reviewed based on a change of circumstances. There has been no change of circumstances but bringing new grounds which have not been deliberated before the trial court.The court should decline to revise the bond terms and the applicant moves before the trial court based on new grounds which have not been canvassed before the trial court.On Section 123 of the Criminal Procedure Code, the needs to internalize on the aspect of discretion and the court should not interfere if discretion is not abused.Mr. Mwanzia in replyDiscretion. It is not open cheque. It must be exercised judicially. It was not the case here. The court abused the discretion.New issues - No new issue is being raised. We come under section 123 of the Criminal Procedure Code which authorizes the court to reduce bail by subordinate court.The bail is excessive. It explains why the accused is still in custody. It is same as being in prison. The application should be allowed.”

The law 6. At the outset, the Court would readily agree with the Counsel for the DPP that (1) this is not a neat and proper case of calling for revisionary powers under section 362 of the Criminal Procedure Code as framed by the Counsel for the applicant, and (2) that new issues not taken before a trial court may not be raised in an application for revision of its order. It is properly the province of a review application before the same trial court on the ground say of discovery of new material.

7. However, on a question of bail, a Notice of Motion for review of bail terms by the trial court or the appellate in accordance with provisions on bail would be sufficient. Although it may also involve questions 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”, as contemplated in section 362 of the Criminal Procedure Code, bail provisions are self-contained to tackle any matter arising from the order of the trial court, without invoking the supervisory jurisdiction.

8. However, the Court has crisp review jurisdiction under section 123 (3) of the Criminal Procedure Code, which provides for the procedure for review of bail terms as follows:“123 (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.”

Issue for determination 9. The question before the court is whether the court will interfere with the discretion of the trial court in granting bail in the circumstances of this case.

10. As in all judicial discretion of a trial court, the appellate court is only entitled to interfere with the discretion of the trial judge or magistrate in the circumstances set by the Court of Appeal in the civil case of Mbogo v. Shah (1968) EA 93 as follows:“[A] Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge was clearly wrong in the exercise of his discretion and that as a result there has been misjustice”.

The trial court orders on bail 11. The Order on bail by the trial court made on 5/9/2023 is in the following specific terms:“OrderThis matter coming up for plea taking on 5. 9.2023 before M.A. Odhiambo, Senior Resident Magistrate in presence of Mr. Magoma the State counsel, Mr. Kitheka for the accused and Mr. Muriuki watching brief for the complainant and upon perusal of the affidavit dated 5. 9.2023 sworn by I.P. Paul Masika Kureba.It is hereby ordered1. That the accused is to be released on bond of Kshs.10,000,0001= (10 million) with a surety of similar amount.2. That the passport/his passport which is being held by DCIO to be deposited in court. The same to be held in court until case is finalized.3. That the accused is hereby ordered not to contact or interfere with the prosecution witnesses.4. That the accused is also ordered not to set foot in the offices housing the said company.5. Mention on 13. 9.2023 in court No. 1 for pretrial directions.Given under my hand and the seal of the court this 5th Day Of September, 2023. ”

12. The trial court herein clearly pegged the bail terms on the amount of money allegedly stolen by the accused as charged at Ksh.49,448,000/-.

13. The opposition to the revision of the bail terms by the complainant is clearly and attempt to challenge the order on bail in the statement that the accused is a flight risk. If the trial court had thought the accused to be a flight risk, it would not have granted bail as that is a compelling reason to refuse bail. From the trial court record, the court in its ruling on bail properly rejected a submission based on the serious charges against the accused and said:“Court:I have considered the application by the state to deny he accused bond terms. Article 49(1) (h) of the Constitution guarantees the righ to be granted reasonable bond terms. And if the court is to deny Accused bond the compelling reasons are to be given. The state has stated that Accused is charged with serious offence, however, this is not a good enough reason to deny bond. Ass such and balancing the interests of eh Accused and that of the complainant, I order as follows…”

14. It is in ordering an excessive term of the bond that the court faults the trial court. The grant of bail is meant to ensure that the accused is released to attend his trial when required by the court. The terms are not meant to be an indirect denial of bail: bail terms that are so high as to amount to a denial of bail are wrong. In assessing the amount of bond or cash bail to grant, the court must examine the accused to see what amount is appropriate given the financial ability of the accused. To only consider the amount or value of the property allegedly stolen or subject of the offence is to err by failing to make an order for bail which suits the particular accused person before the court. This court has considered the record of the trial court at the bail hearing and no indication that the court considered the circumstances and means of the accused to meet the bail terms.

15. With respect, this court is content to restate the statement of the Court in Cyril Kipruto Serem v Republic [2020] eKLR as to the meaning of reasonable terms of bail in section 123(2) of the Criminal Procedure Code, as follows:“Reasonable terms of Bail3. With respect to a decision on bail, the court is required to observe the statutory injunction in section 123 (2) of the Criminal Procedure Code that “the amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.” The rationale for this rule is elaborated in the Kenya Judiciary’s Criminal Procedure Benchbook, 2018 para. 109 at p.52 while dealing with minor offences, in terms that–“109. Courts must ensure bail conditions are reasonable and not excessive, as this would lead to de facto imprisonment and amount to a violation of Article 49 (2). What is reasonable should be determined in light of the facts and circumstances of each case (R. v Taiko Kitende Muinya High at Nairobi Criminal Case No. 65 of 2010).”4. In addition, the Judiciary’s Bail and Bond Policy Guidelines at p.9 paragraph 3. 1 (d) underpins 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.”5. The amount of bail or bond is not supposed to be an approximation of the value of the subject matter of the criminal charge. It does not follow that the higher the value of the property subject of the trial the higher the bail bond terms. It is with respect faulty reasoning because, were it so, those poor offenders on charges, for example, of destruction or attempted fraudulent obtaining, of property of high value would never secure hefty bail and bond terms imposed. Terms of bond are not meant to punish the accused for any perceived guilt for the charges leveled against him. Nor are the terms meant to ensure he is detained awaiting trial to avoid his escape or to ensure punishment. Terms of bail or bond should be tailored to secure and ensure the attendance in court of the accused for purpose of his trial.6. If the case meets the criteria for grant of bail in that there are no compelling reasons to deny bail, then the conditions for bail must be such as the accused in the particular case is able to meet. So that grant of bail is not a backdoor denial of liberty contrary to, and in mockery of, Article 49 (1) (h) of the Constitution. The accused is innocent until proved guilty and he is entitled to the Article 25 fair trial protections afforded an accused under the Constitution.”

16. This Court considers that, in the excessiveness of the bail terms herein, there is justification to interfere with the discretion of the trial court to decide the bail terms.

Orders 17. Accordingly, for the reasons set out above, the Court makes the following orders:1. The terms of bail granted by the trial court in Meru Chief Magistrate’s Court Criminal Case No. E/201/2023 by its Order of 5/9/2023 are hereby reviewed.2. Order No. 1. of the said Order on Bail to the effect that the accused is to be released on bond of Kshs.10,000,0001= (10 million) with a surety of similar amount, is set aside.3. The Accused may be released on a Bond of Ksh.2,000,000/- with one (1) surety, or Ksh.1,000,000/- with two (2) sureties, of the same amount.4. All the other terms of the bail order remain the same.

18. There shall be no order as to costs.Order accordingly.

DATED AND DELIVERED THIS 14TH DAY OF NOVEMBER, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. Mwanzia for the Applicant.Mr. K. Muriuki for the Complainant.Mr. Masila for the DPP.