[2013] KEHC 5677 (KLR)

[2013] KEHC 5677 (KLR)

The court found that although the applicant was given an opportunity to be heard, the trial magistrate failed to comply with the full procedure required by Section 131 of the Criminal Procedure Code. Specifically, the magistrate did not attempt to recover the penalty by attachment and sale of the surety's property...

Source-derived case information.

Citation
[2013] KEHC 5677 (KLR)
Parties
Applicant: Morris Abuga; Respondent: Republic
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Judgment Date
19 July 2013
Case Number
Criminal Revision 69 of 2013
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Sentence and Forfeiture Order
Outcome
sentence of imprisonment set aside; matter remitted for compliance with proper procedure
Judges
GO Shikwe
Legal Topics
Surety Liability, Forfeiture of Recognizance, Procedural Fairness, Sentencing Procedure
Source Language
english
Criminal Law Civil Procedure Surety Liability Forfeiture of Recognizance Procedural Fairness Sentencing Procedure

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Parties

Morris Abuga

Applicant

Republic

Respondent

Procedural Posture

Criminal Revision / Ruling on Application for Revision of Sentence and Forfeiture Order

Legal Issues

  1. 1 Whether the applicant was denied the right to be heard before being sentenced to imprisonment for failure to produce the accused as surety.
  2. 2 Whether the trial magistrate complied with the mandatory procedures under Section 131 of the Criminal Procedure Code before ordering forfeiture and imprisonment of the surety.

Ratio Decidendi

The court found that although the applicant was given an opportunity to be heard, the trial magistrate failed to comply with the full procedure required by Section 131 of the Criminal Procedure Code. Specifically, the magistrate did not attempt to recover the penalty by attachment and sale of the surety's property before sentencing the applicant to imprisonment. The law mandates that only if the penalty cannot be recovered through attachment and sale may the court impose a term of imprisonment. The omission of this step rendered the imprisonment order procedurally improper. Consequently, the sentence of six months imprisonment was set aside pending full compliance with Section 131, and...

Court Disposition

sentence of imprisonment set aside; matter remitted for compliance with proper procedure

Orders

  • The sentence of six months imprisonment against the applicant is temporarily set aside.
  • The applicant is released on a bond of Ksh. 100,000 with one surety.