[2022] KEHC 10258 (KLR)

Kuria v Republic (Criminal Revision 28 of 2022) [2022] KEHC 10258 (KLR) (5 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10258 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Criminal Revision 28 of 2022

F Gikonyo, J

July 5, 2022

Between

Peter Mwangi Kuria

Applicant

and

Republic

Respondent

(From the Ruling of Hon. M.I.G. Morang’a (S.P.M) in Kilgoris S.P.M. No. E034 of 2022 on 8th March 2022)

Ruling

1. In a letter dated 22nd March 2022 written under Articles 49(i), (h), 165 (3b), (6), (7) of the constitution, Section 123(3), 362,364 and 367 of the Criminal Procedure Code, the Applicant sought for orders that the record of the subordinate court in Kilgoris Senior Principal Magistrate’s Court Criminal Case No. E034 of 2022 be placed before the High Court for purposes of ascertaining the legality, correctness and or propriety of the ruling of the lower court.

2. The reasons cited in support of the application are: First, the Court should exercise discretion in revision of bail and bond wherein the magistrate imposed unreasonable terms. Second, the applicant’s health and life is in danger as he is suffering from prostrate hypertrophy (BPH), acute cystitis and kidney disease and requires urgent medical intervention which is not available at the remand facility.

3. According to him, cash bail of Kshs. 7 million or an alternative bond of Kshs. 15 million with a surety of a similar amount was not reasonable.

Background 4. The applicant is jointly charged with another (Bonface Wegesa) with the offence of trafficking in narcotics drugs contrary to Section 4(a) of the Narcotic Psychotropic Substances Control Act. No. 4 of 1994.

5. The applicant pleaded not guilty. His application for bond was opposed by the state.

6. The prosecution opposed the grant of bond based on three grounds; i) intimidation/inferences of witnesses, ii) flight risk and iii) habitual offender.

7. The court ordered for a pre-bail report which came out favorable.

Applicant’s Submissions. 8. The applicant submitted that the trial court misdirected itself by basing its ruling on assumptions and failed to specify the earlier bond terms the applicant contravened (if any). That the words recommit and reoffend used by the court in the ruling takes away the protection afforded to the applicant under Article 49(i) of the Constitution.

9. The applicant submitted that if the double criteria used by the trial court was lawful his bond ought to have been set at approximately Kshs. 2,347, 500/= with surety of a similar amount or alternative cash bail of at least kshs. 1,000,000/=. Therefore, the bond and cash bail terms granted to the applicant are without legal foundation.

10. The applicant has relied on the following authorities;i.Article 49(i) and 50(2) of the Constitution.ii.Mohammood Chute Wote & 2 Others Vs Republic [2021] eKLR.iii.Adan Diba Ramata & Another V Director of Public Prosecutions [2021] eKLR.

Respondent’s Submissions. 11. The prosecution submitted that the issue of violation of bond terms in criminal case no. 40 of 2020 before JKIA law courts was not contested during the bail application hearing. Therefore, the magistrate did not therefore make any errors in asserting a non- contested fact. The prosecution opposed reduction of bond and bail terms.

12. The prosecution submitted that the fact that the applicant was admitted to bail demonstrates that the subordinate court respected and upheld his right to be presumed innocent until proven guilty. The personal circumstances of the accused person and whether an accused may commit further offences are key consideration in determining the amount of bail to be deposited. The same is in line with the bail and bond policy guidelines and jurisprudence.

13. The prosecution has relied on the following authorities;i.Repubkic Vs Fredrick Ole Leliman & 4 Others [2016] eKLR quoted with approval in Republic Vs Simon Kathiga Tama [2021] eKLR.

Analysis and Determination 14. The Revisionary Jurisdiction of the court stems from Article 165(6) & (7) of the Constitution which provides that: -(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 purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or 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.

15. Also relevant in the exercise of revisionary jurisdiction of the court is Section 362 of theCriminal Procedure Code Cap 75 provides which provides as follows: -“Power of the High Court to Call for Records: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.”

16. I am aware that, hitherto, the dominant view seems to hemp exercise of Revisionary Jurisdiction within the four technical terms expressed in section 362 of the CPC thus; ’…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 [emphasis supplied]. However, ponder these pertinent questions. First; whether Revisionary Jurisdiction should be exercised in accordance with the threshold provided in article 165(7) of the Constitution where the High Court…‘may make any order or give any direction it considers appropriate to ensure the fair administration of justice’. And, second; whether the scope of Revisionary Jurisdiction of the High Court provided in article 165(7) of the Constitution is limited to the four technical terms…’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 [emphasis provided] in section 362 of the CPC in light of section 7 of the Transitional Provisions under article 261 of the Constitution that all existing law (such as section 362 of the CPC) …’shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution’. The exhaustiveness of section 362 of the CPC also comes to question. These are two problem statements for further input or research.

Bail/bond: Purpose and reasonable terms 17. Whilst Bail/bond guarantees the liberty of the accused, it must also ensure that the accused person attends and does not prejudice trial. The latter guarantees integrity of the trial as well as rights of the victims. And, therefore terms or conditions of bail should not be so restrictive of the right to liberty. Nevertheless, reasonable conditions or terms for bail or bond, draw upon the peculiar circumstances of the case and the accused person concerned. Therefore, there is no such notion as uniformity of bail or bond terms for co-accused as the accused herein seems to argue. Needles to state also; that terms or conditions imposed in one case may not be reasonable in another. Similarly, one or more accused persons may be refused bail whilst co-accused or accused are granted bail. It bears repeating; bail is determined on the basis of the circumstances of the case and the accused person concerned.

Issue 18. I do note that the Applicant has expressed a position on the presumption of his innocence until he is proven guilty and so he expects to be granted reasonable bail/bond terms. The trial court recognized his right to bail and granted the applicant bail or bond. Except, the applicant calls upon this court to check the correctness, legality or propriety of the ruling by the trial court especially in setting the terms of bail or bond. Thus, the issue at hand is whether the trial court in setting the terms of bail and bond committed any impropriety or illegality or error in principle as to make the terms a denial of a right or fundamental freedom.

Propriety 19. From the outset, I have perused the trial court’s record and I am satisfied there is nothing which goes against the conventional standard of behavior or professional or moral ethics of the trial court. In fact, other than citing the ground of propriety, the applicant did not provide proof of impropriety on the part of the trial court. The ground fails.

Legality and correctness 20. I will handle these two grounds together for their tenuous nexus. Correctness refers to quality or state of being free from error. Legality refers to quality or state of being in accordance with the law.

21. In setting the terms, did the trial court commit any illegality or error in principle as to make the terms a denial of a right?

22. I am content to cite the Bail and Bond Policy Guidelines at page 9 paragraph 3. 1. (d) on 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.”

23. One of the reasons the trial court imposed a bond of Kshs. 15 million with a surety of a similar amount or a cash bail of Kshs. 7 million was because of: -“…1st accused failure to adhere to the earlier bond terms and going forth to commit the court’s view must raise a red flag as to the conduct of the 1st accused…………the court is however, of the view that the 1st accused person having contravened his bond terms and has re-offended (his presumed innocence notwithstanding) his bond terms shall move straight than the 2nd accused herein”.

24. This was a finding of fact by the trial court and there is nothing to negate it. It is not extraneous consideration of breach of previous bond terms in setting bail or bond terms for the accused, for it may speak to his ability to keep or obey the terms.

25. I should also note that the trial court considered the commission of a previous offence which is similar to the one the 1st accused faces in these proceedings; this is also an important consideration in setting bail or bond terms or conditions. In sum, the totality of all circumstances of the case and the person concerned should be evaluated in setting bail or bond terms.

Conclusion and Orders. 26. Given the foregoing circumstances of the case, and the value of the narcotic substance, the trial court did not commit any illegality or error in principle in imposing the bail and bond terms on the applicant herein. Therefore, the bail or bond terms do not amount to restriction or denial of right or fundamental freedom of the applicant.

27. In the upshot, the applicant’s revision request is declined and dismissed. It is so ordered.

28. Right of appeal explained.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION, THIS 5TH DAY OF JULY, 2022. F. GIKONYO M.JUDGEIn the Presence of:Okeyo for DPPOngeri for the applicantApplicantKasaso - CA