[2021] KEHC 8851 (KLR)
The court found that the offences of forcible entry and assault causing actual bodily harm are misdemeanors with maximum sentences of two and five years respectively. The bond terms imposed by the trial court were excessive in relation to the gravity of the offences and the applicants' constitutional rights. The...
Source-derived case information.
- Citation
- [2021] KEHC 8851 (KLR)
- Parties
- Applicant: Mike Kainga Kazungu; Applicant: Samuel Kassim Ramadhan; Applicant: Sally Safari Kazungu; Respondent: Republic through the Director of Public Prosecution
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E006 of 2021
- Procedural Posture
- Criminal Revision / Ruling on Application to Revise Bond Terms
- Outcome
- application allowed
- Legal Topics
- Bail and Bond Terms, Forcible Entry, Assault Actual Bodily Harm, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mike Kainga Kazungu
Applicant
Samuel Kassim Ramadhan
Applicant
Sally Safari Kazungu
Applicant
Republic through the Director of Public Prosecution
Respondent
Procedural Posture
Criminal Revision / Ruling on Application to Revise Bond Terms
Legal Issues
- 1 Whether the bond terms imposed on the applicants were excessive and punitive in light of the offences charged.
- 2 Whether the applicants' constitutional rights to reasonable bail terms and presumption of innocence were infringed.
Ratio Decidendi
The court found that the offences of forcible entry and assault causing actual bodily harm are misdemeanors with maximum sentences of two and five years respectively. The bond terms imposed by the trial court were excessive in relation to the gravity of the offences and the applicants' constitutional rights. The existence of related civil cases further supported the need for reasonable bond terms. The court exercised its revisionary jurisdiction to reduce the bond terms to Kshs.100,000/= with surety of similar amount or cash bail of Kshs.10,000/= each, ensuring compliance with constitutional standards of fairness and reasonableness.
Court Disposition
application allowed
Orders
- Bond terms for each applicant revised to Kshs.100,000/= with surety of similar amount or cash bail of Kshs.10,000/=
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL DIVISION
CRIMINAL REVISION NO. E006 OF 2021
1. MIKE KAINGA KAZUNGU
2. SAMUEL KASSIM RAMADHAN
3. SALLY SAFARI KAZUNGU...........................................APPLICANTS
VERSUS
REPUBLIC Thro’THE DIRECTOR
OF PUBLIC PROSECUTION...........................................RESPONDENT
R U L I N G
1. Mike Kainga Kazungu Samueal Kassim Ramadhan and Sally Safari Kazungu are jointly charged in Shanzu CMC CR. Case No. E192 of 2021 with the offence of forcible entry contrary to Section 90 as read with Section 36 of the penal code in Count I and assault cause of actual bodily harm contrary to Section 251 of the penal code.
2. They pleaded not guilty and were granted bond of Kshs.1,000,000/= each with a surety of a similar amount or cashbail of Kshs.500,000/= each.
3. The applicants through their advocates letter dated 8th February 2021 prayed that this court revises the bond terms as the same are excessive and punitive in consideration that the offences for which applicants have been charged are misdemeanors and constitute an infringement of the applicants constitutional rights to be released on bail on reasonable terms and conditions and be presumed innocent until proven guilty.
4. The Respondents were served but they didn’t respond. Ms. Karanja informed the court that Mr. Fedha prosecuting counsel who was in conduct of the matter was yet to consult the counsel conducting trial at Shanzu Law Courts. The court gave the Respondents 3 days to file and serve submissions but the reply or even submissions have not been filed.
5. I have considered the application for revision and the fact that the offence of forcible entry is a misdemeanor which maximum sentence is 2 years with or without a fine and the offence of assault provides that convict is liable to a maximum of 5 years. I do find that the bond terms imposed are excessive given the fact of the existence of Malindi High Court ELC No. 21 of 2020 – Lien Estates Developers Ltd vs Juma Okumu & Chief Land Registrar and Mombasa H.C. ELC No. 243 of 2020. Kensinglon Estates Ltd vs Lien Estates Development Ltd & Otherswhich are directly related with the criminal cases herein.
6. In the circumstances, I do hereby revisit the bond terms to Kshs.100,000/= each with surety of similar amount with an alternative of cashbail of Kshs.10,000/= each.
Dated, signed and delivered at Mombasa this 25th day of February, 2021by Microsoft Teams/Open Court.
HON. LADY JUSTICE A. ONG’INJO
JUDGE