[2022] KEHC 13726 (KLR)

Mutura v Republic (Criminal Revision E414 of 2021) [2022] KEHC 13726 (KLR) (Crim) (4 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13726 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E414 of 2021

JM Bwonwong'a, J

October 4, 2022

Between

Joseph Mbugua Mutura

Applicant

and

Republic

Respondent

(Being an application for revision from the order of Hon. Ojoo, SPM, delivered on 11/04/2019 in the Chief Magistrate’s Court at Kibera (Nairobi) in Criminal Case No.4282 of 2016, Republic versus Joseph Mbugua Mutura alias Jeff Matagaro Mokaya)

Ruling

The case for the accused/applicant Introduction 1. The applicant has sought revision of the order of the trial court that forfeited his security on 11/4/2019 following his failure to attend court. Additionally, the trial court directed the executive officer to file a restriction against the title in relation to land parcel No. Limuru/ Mbari Ya Igi/ 329.

The submissions of the applicant 2. The accused was charged with the offence of theft of a motor vehicle contrary to section 278 (A) of the Penal Code (cap 63) Laws of Kenya. While the case was proceeding the accused disappeared and absconded. The surety who was the father of the accused eventually died on May 10, 2020 due to blood pressure.

3. The father of the accused deposited his title deed being land parcel No. Limuru/ Mbari Ya Igi/ 329 as security.

4. The administrator of the estate of the deceased was aggrieved by the procedure followed in forfeiture of the security and the registration of the caveat against the title deed which in his view was unfair and unlawful.

5. Counsel cited section 131 of the Criminal Procedure Code (cap 75) Laws of Kenya, which reads as follows:(1)Whenever it is proved to the satisfaction of a court by which a recognizance under this code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.(2)If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.(3)A warrant may be executed within the local limits of the jurisdiction of the court which issued it; and it shall authorize the attachment and sale of the movable property belonging to the person without those limits, when endorsed by a magistrate within the local limits of whose jurisdiction the property is found.(4)If the penalty is not paid and cannot be recovered by attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term not exceeding six months.(5)The court may remit a portion of the penalty mentioned and enforce payment in part only.(6)When a person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his recognizance, a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties, and, if the certified copy is so used, the court shall presume that the offence was committed by him unless the contrary is proved.”

6. Based on the foregoing provisions counsel submitted that the procedure of forfeiture of the recognizance was not followed in that the applicant was not given a right of audience. In other words, the applicant was condemned unheard.

7. In respect of caveat that was registered against the title deed namely land parcel No. Limuru/ Mbari Ya Igi/ 329, counsel submitted that the caveat had not been lifted as alleged by the prosecutor. In this regard. Counsel relied on section 129 of the Criminal ProcedureCode which provides as follows:"129. Death of surety Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond, but the party who gave the bond may be required to find a new surety.”

8. Counsel therefore urged the court set aside the orders made by the lower court.

The submissions of the respondent 9. Counsel for the respondent has supported the forfeiture order arguing that it is proper.

10. In respect of section 129 of the Criminal Procedure Code, counsel submitted that a surety shall only be discharged from liability, if he died before the bond is forfeited to the state; which is not the position in this case. The surety was alive when the forfeiture was ordered by the court.

11. Additionally, counsel submitted that the there is no proof that the surety is dead.

12. Counsel has also submitted that the applicant is a stranger to the criminal proceedings and that he did not appear in the trial court to explain the whereabouts of the surety.

Issues for determination 13. I have considered the submissions of the parties and the applicable law. As a result, I find that the following to be the issues for determination.

Whether the application is properly before this court. Issue 1 14. I find that the alleged administrator has not proved by way of evidence that he has been granted letters of administration of the estate of the deceased enable him to file the current application.

15. I therefore agree with Ms Akunja that the applicant is a stranger to the present application.

16. In the premises, I find that the application has failed with the result that it is hereby struck out for being incompetent.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 4TH OF OCTOBER 2022. J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr Weombo for the ApplicantMr. Otieno for the Respondent