Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

Milan Jayendra Malde v Republic [2017] KEHC 9092 (KLR)

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Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the applicant failed to disclose the specific date of the wedding, raising doubts about the existence of the event. The proposed travel period coincided with the scheduled hearing of a criminal case in which the applicant is an accused, increasing the risk that he would not return for trial. The court held that the purpose of the travel advisory was to ensure the applicant remained within the jurisdiction and that lifting the ban, given the uncertainties, would defeat this purpose. The court further noted that the deposit of cash bail was not a sufficient safeguard against absconding. Consequently, the application to lift the travel advisory was dismissed.

Court disposition

application dismissed

Orders

  • The application to lift the travel advisory on the applicant's passport is dismissed.
  • No orders as to costs.

02

Material facts

Parties

Milan Jayendra Malde

Applicant

Republic

Respondent

03

Procedural history

  1. Posture

    Criminal Application / Ruling on Application to Lift Travel Advisory

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant seeks the lifting of the travel advisory on his passport to enable him to travel to the UK to attend his sister's wedding. He relies on the importance of the family event and the fact that he has deposited cash bail as assurance of his return.
Respondent
The respondent opposes the application, arguing that the date of the wedding has not been disclosed, the travel period coincides with the hearing of a pending criminal case, and the lifting of the travel ban would defeat its purpose of ensuring the applicant remains within the court's jurisdiction.

05

Court’s reasoning

  1. 01

    Criminal Procedure Code (Cap 75 Laws of Kenya)

    Bail conditions, including travel restrictions, are imposed to secure the attendance of an accused at trial and prevent absconding.

  2. 02

    Judicial discretion; general principles of bail law

    The court must balance the rights of the accused to attend personal events against the risk of undermining the administration of justice.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant failed to disclose the specific date of the wedding, raising doubts about the existence of the event. The proposed travel period coincided with the scheduled hearing of a criminal case in which the applicant is an accused, increasing the risk that he would not return for trial. The court held that the purpose of the travel advisory was to ensure the applicant remained within the jurisdiction and that lifting the ban, given the uncertainties, would defeat this purpose. The court further noted that the deposit of cash bail was not a sufficient safeguard against absconding. Consequently, the application to lift the travel advisory was dismissed.

Obiter and limits

  • Weddings, while important, do not constitute special circumstances that would justify the risk of an accused absconding trial.
  • The failure by the prosecution to execute a similar order in another case is attributable to the DPP and does not affect the present application.

Court disposition

application dismissed

  • The application to lift the travel advisory on the applicant's passport is dismissed.
  • No orders as to costs.

Source and reliance status

High Court

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Judgment text

The complete available source text.

Source document

High Court

Judgment

[2017] KEHC 9092 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

CRIMINAL APPLICATION NO. 342 OF 2017

MILAN JAYENDRA MALDE.......................APPLICANT

VERSUS

REPUBLIC..............................................RESPONDENT

RULING

Before me is an application seeking the lifting of travel advisory on the passport of the applicant. He intends to travel to the UK to attend a wedding of his sister. I make the following observations;

First, the exact date of the wedding is either not known or/and has not been disclosed. Court cannot give a blanket travel permission to attend an event whose date of occurrence is unknown. A wedding is a specific event whose date is always set. I see no reason why the date should not be disclosed. This leads me to conclude that probably no such wedding exists.

Second, pursuant to the first observation, the estimate dates for the wedding coincide with the month of the hearing of one of the cases, being Cr. Case No. 1568/2010 set for 25/7/2017. I cannot vouch that the applicant once he travels to the UK early in the month of July, 2017 will avail himself for the hearing of the case.

Third, the travel advisory was imposed for a purpose, so as to ensure that the applicant and his co-accused do not leave the jurisdiction of the trial court. With the uncertainty of the return of the applicant, the lifting of the ban will defeat the very purpose for which the ban was imposed.

Four, is that the court must interrogate whether attending a wedding is such a need that the failure to do so would adversely affect the applicant. I am alive to the fact that weddings are valued events which any relative of the newly wed would not wish to miss. However, they do not present special instances that would warrant the court to take the risk that if the applicant is given permission to travel, he may not return for the trial.

Five, I am aware that the applicant deposited cash bail which is fluid and can easily be forfeited to the State if he strictly feels he does not want to return for the trial. Hence, the assurance that he shall avail himself is not secured.

Six, is the issue raised that restrictions on the passports of Jayendra Khimji and Ranjan Jayendrawere not effected following the order in High Court Misc. Cr. Application No. 571/2017 by Hon. Justice Warsame, as he then was. There is no doubt that this was not done. I need not restate the said order. My comment on that is that the failure to have the order executed can only be apportioned to the DPP (prosecution) who failed to follow up on it. It is up to the DPP to do the needful.

Having made the above observations unfortunately, I am of the view that the court would be taking the risky path if it lifted the ban on the applicant’s passport. Respectively, the application must fail. The same is dismissed with no orders as to costs.

Dated and Delivered at Nairobi this 13th Day of June, 2017

G.W. NGENYE-MACHARIA

JUDGE

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Procedure Code (Cap 75 Laws of Kenya)

Legislation

Legislation referenced in the available case record.

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