[2011] KEHC 3881 (KLR)
The court held that the Mombasa trial court was not bound by the bail terms set by the Nairobi court, particularly because the consolidated case involved a higher value of stolen goods and different circumstances. The trial court properly exercised its discretion in setting new bail terms. However, considering the...
Source-derived case information.
- Citation
- [2011] KEHC 3881 (KLR)
- Parties
- Applicant: Mutunga Munyoli; Applicant: Daniel Kisko Kitili; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 29 of 2011
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Application for Review of Bail Terms
- Outcome
- bail terms reviewed and varied; applicants to be released on existing cash bail with conditions
- Legal Topics
- Bail Review, Right to Bail, Judicial Discretion, Handling Stolen Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutunga Munyoli
Applicant
Daniel Kisko Kitili
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Application for Review of Bail Terms
Legal Issues
- 1 Whether the trial court was bound by the bail terms set by the Nairobi court for the applicants.
- 2 Whether the bail terms imposed by the Mombasa court were excessive or improper in light of the applicants' constitutional rights.
- 3 Whether the applicants should be released on the existing cash bail or on revised terms.
Ratio Decidendi
The court held that the Mombasa trial court was not bound by the bail terms set by the Nairobi court, particularly because the consolidated case involved a higher value of stolen goods and different circumstances. The trial court properly exercised its discretion in setting new bail terms. However, considering the applicants' constitutional right to bail and their residence, the High Court found it appropriate to review and vary the bail terms to facilitate their release. The applicants were ordered to be released forthwith on the existing cash bail of Kshs.200,000 each, with a requirement to deposit the balance within 14 days or provide sureties, failing which the release order would be...
Court Disposition
bail terms reviewed and varied; applicants to be released on existing cash bail with conditions
Orders
- The accused shall be released forthwith on the basis of the existing cash bail of Kshs.200,000 each.
- Each accused shall within 14 days deposit the respective balance of Kshs.300,000 cash bail into court or produce sureties for a bond of Kshs.1,000,000.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CRIMINAL APPLICATION NO. 29 OF 2011
MUTUNGA MUNYOLI
DANIEL KISKO KITILI ……………………………………….APPLICANTS
VERSUS
REPUBLIC ……………………………………………………RESPONDENTS
R U L I N G
I have considered the application for bail terms review dated 1. 02. 2011.
The two accused herein were arrested on 24. 01. 2011 after their truck was found fitted with Pirelli tyres which were allegedly part of a consignment stolen from a lorry on 5. 12. 2010 at Jomvu Changamwe in Coast Province.
The accused were arraigned before the Chief Magistrate’s Court in Nairobi and charged with the offence of stealing and handling suspected stolen goods and released on a cash bail of Kshs.200,000/- which cash bail they posted.
Prosecution opted for transfer of the matter to the Chief Magistrate’s court at Mombasa to be consolidated with another case which had been pending involving one accused person.
In the Nairobi court, it became clear that the charging in Nairobi of the 2 accused was to beat the 24 hour deadline set out in the New Constitution, Article 49(f) as stated by the prosecutor.
Unknown to Hon. Mutembei, the court in Mombasa had set the bail for the other accused person at Kshs.2m with sureties or 1m cash bail.
Hon. Ms Mutende demanded quite rightly the court proceedings and the order in the Nairobi Court. She also asked for the original receipts for the cash bail.
As a result she declined to extend the purported cash bail to the consolidated case.
She released accused on bond of Kshs.2million with one surety for similar amounts or a cash bail of Kshs.1 million.
In view of the above, I am satisfied that the Hon. Trial court acted properly and exercised its discretion. It was not bound by the cash bail of Shs.200,000/- which has now been proven to have been duly paid. I have seen the certified copies of the receipt and the proceedings.
In the charge sheet of the consolidated case, the total values of stolen goods is Kshs. 13 million.
In fact upon perusal of the proceedings, the two accused were the two other accused in the Mombasa case.
Having now been brought to Mombasa, the court had a right to set the fresh bail terms. The court was not bound by the bail set in Nairobi.
Upon consulting the trial court, I am told that the 1st Accused has not raised bail and he is free to apply for review if he applies.
Considering the submissions by Mr. Mutua and agreeing that this court has discretion, I do hereby review the bail terms and vary the same.
The Accused shall and are hereby released on bail in the sum of Kshs.1,000,000/- with one surety for each of them or in the alternative each on Kshs.500,000/- cash bail.
Considering where they reside and considering that it is the court ought to facilitate the enjoyment of the bail as a Constitutional right, I do hereby order that the Accused be released forthwith on the basis of the existing cash bail of Shs.200,000/- each.
Each Accused shall within 14 days deposit the respective balance of Shs.300,00,000/- cash bail into court without fail or producing sureties for the bond of Shs.1,000,000/-. In default, this release order which is conditional shall stand revoked and the accused shall be re-arrested and placed in remand prison pending the hearing of their case.
The Accused to appear before the Hon. Magistrate on 22. 02. 2011 without fail.
Dated and delivered at Mombasa on 8th February 2011.
M. K. IBRAHIM
J U D G E