[2013] KEHC 2765 (KLR)
The court found that the trial magistrate failed to conduct the mandatory inquiry required under Sections 43–54 of the Criminal Procedure Code before ordering the applicants to execute bonds to keep peace. The magistrate did not take evidence or give the applicants an opportunity to defend themselves, as required by...
Source-derived case information.
- Citation
- [2013] KEHC 2765 (KLR)
- Parties
- Applicant: Martin Wang’ombe Weru; Applicant: Leonard Kamanwa Nganga; Applicant: Ernest Igoma Waithera; Applicant: Morris Mwiti Musyoka; Applicant: Dennis Mwaura Kibunya; Applicant: Douglas Njoroge Kamau; Applicant: Geoffrey Mungai Kamunguria; Applicant: Robert Ndungu Chege; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 16 of 2013
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Bond Orders
- Outcome
- application allowed; proceedings and bond orders set aside
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Peace Bond Proceedings, Procedure for Bond Orders, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Wang’ombe Weru
Applicant
Leonard Kamanwa Nganga
Applicant
Ernest Igoma Waithera
Applicant
Morris Mwiti Musyoka
Applicant
Dennis Mwaura Kibunya
Applicant
Douglas Njoroge Kamau
Applicant
Geoffrey Mungai Kamunguria
Applicant
Robert Ndungu Chege
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Bond Orders
Legal Issues
- 1 Whether the trial magistrate followed the correct procedure under Sections 43–54 of the Criminal Procedure Code in ordering the applicants to execute bonds to keep peace.
- 2 Whether the applicants were afforded an opportunity to defend themselves before the bond orders were made.
- 3 Whether failure to conduct an inquiry rendered the proceedings a nullity.
Ratio Decidendi
The court found that the trial magistrate failed to conduct the mandatory inquiry required under Sections 43–54 of the Criminal Procedure Code before ordering the applicants to execute bonds to keep peace. The magistrate did not take evidence or give the applicants an opportunity to defend themselves, as required by law. Citing the precedent in Mwagona and 3 others v Republic, the court held that such failure rendered the proceedings a nullity. Consequently, the orders made by the magistrate were set aside in their entirety, and any cash bail paid by the applicants was to be refunded.
Court Disposition
application allowed; proceedings and bond orders set aside
Orders
- The proceedings before the magistrate are set aside in their entirety.
- Any cash bail paid by the applicants shall be refunded to them.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL REVISION NO. 16 OF 2013
MARTIN WANG’OMBE WERU
LEONARD KAMANWA NGANGA
ERNEST IGOMA WAITHERA
MORRIS MWITI MUSYOKA
DENNIS MWAURA KIBUNYA
DOUGLAS NJOROGE KAMAU
GEOFFREY MUNGAI KAMUNGURIA
ROBERT NDUNGU CHEGE ………………… APPLICANTS
VERSUS
REPUBLIC ………………………..…………… RESPONDENT
(From original conviction and sentence in Criminal Misc Case No. 21 of 2013 in the Chief Magistrate’s Court at Kikuyu – A.W. Mwangi (Ag SPM) on 3rd April 2013)
RULING
The applicants, Martin Wang’ombe and others were presented before the magistrate’s court at Kikuyu and ordered to execute bonds to keep peace following allegations presented by way of affidavit by acting Inspector Eganza Dewy Linyerera of Kikuyu police station.
On allegedly agreeing to execute bonds, each was ordered to execute a bond of Ksh. 30,000/- with a surety of a like sum. Those able were also ordered to pay cash bail of Ksh. 30,000/- They were aggrieved by these orders and by a letter dated 27th March 2013, this matter was brought before this court.
I have gone through the record before me. The learned trial magistrate did not follow the procedure laid down in Sections 43 – 54 of the Criminal Procedure Code. After being informed by Inspector Eganza of the need for the applicants to execute the bond, the learned trial magistrate was mandated to conduct an inquiry to confirm the veracity or otherwise of the information. This she did not do.
An inquiry of this nature I believe entails the taking of some evidence and since it is supposed to take the form of a trial in criminal proceedings, the applicants were supposed to defend themselves. As it is, the record is silent on those steps and the logical conclusion is that they were not given an opportunity to defend themselves before the orders were made.
The learned counsel for the applicants has cited the case for Mwagona and 3 others –Vs – Republic (1990) KLR 1. I subscribe to the judgment of Githinji J (as he then was) in which the learned judge set out the steps to be taken in such cases. As this was not done in the present case, the proceedings were a nullity.
Having found so, the same are hereby set aside in their entirely. If any of the applicants paid cash bail, the same shall be refunded to them.
Orders accordingly.
Dated and delivered at Nairobi this 11th day of July 2013
A. MBOGHOLI MSAGHA
JUDGE