[2008] KEHC 465 (KLR)
The court found that since the applicant had complied with the original bond terms and one surety wished to withdraw due to the intention to sell his motor vehicle, it was reasonable and just to vary the bond terms. The court exercised its discretion to allow the withdrawal of the surety and ordered that the...
Source-derived case information.
- Citation
- [2008] KEHC 465 (KLR)
- Parties
- Applicant: Mwanya Migadde; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 339 & 228 of 2008
- Procedural Posture
- Miscellaneous Application / Application for Variation of Bond Terms Pending Appeal
- Outcome
- application for variation of bond terms allowed
- Judges
- MA Warsame
- Legal Topics
- Bail Variation, Surety Withdrawal, Bond Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwanya Migadde
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Application for Variation of Bond Terms Pending Appeal
Legal Issues
- 1 Whether the bond terms set by the High Court can be varied due to the withdrawal of a surety.
- 2 Whether the applicant should be allowed to substitute sureties to maintain compliance with the bond conditions.
Ratio Decidendi
The court found that since the applicant had complied with the original bond terms and one surety wished to withdraw due to the intention to sell his motor vehicle, it was reasonable and just to vary the bond terms. The court exercised its discretion to allow the withdrawal of the surety and ordered that the applicant be released on bond of Kshs.1 million with three Kenyan sureties of Kshs.500,000 each, to be approved by the Principal Deputy Registrar. This ensured both the applicant's continued liberty pending appeal and the protection of the court's interest in securing attendance.
Court Disposition
application for variation of bond terms allowed
Orders
- The bond terms set on 20th December 2007 are varied.
- The applicant shall be released on bond of Kshs.1 million with three Kenyan sureties of Kshs.500,000 each.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc Crim Appli 339 & 228 of 2008 & 845 of 2007
MWANYA MIGADDE …………………………………..…….APPLICANT
VERSUS
REPUBLIC ……………………..…………..……………..RESPONDENT
Consolidated with
Misc Crim Appli 228 of 2008
MWANYA MIGADDE …………………………………..…….APPLICANT
VERSUS
REPUBLIC …………………….…………..……………..RESPONDENT
Consolidated with
Misc Crim Appli 845 of 2007
MWANYA MIGADDE …………………………………..…….APPLICANT
VERSUS
REPUBLIC ………………………..……………..………..RESPONDENT
RULING
In a ruling dated 20th December 2007 His Lordship Mr. Justice George Dulu released applicant on a surety bond of Kshs.1 million with Kenyan surety of similar amount. The applicant met the conditions and is currently out of bond pending determination of his appeal. He has now filed an application dated 13th June 2008 seeking; “that the orders of Justice Dulumade on 20th December 2007 with regard to bail terms be varied to provide for release on bond of Kshs.1 million with two Kenyan sureties totaling to the said amount”.
The purpose is that one of the persons who stood surety for the applicant has expressed an intention to withdraw his security and that the applicant has procured two other individuals willing to stand in as sureties for the total amount set by the court. It is alleged that one of the sureties intends to sell his motor vehicle and as a result wants to withdraw as a surety on behalf of the applicant.
I have considered the application, the arguments in support made by Mr. Rombo learned counsel for the applicant and Mr. Makura for the State. There is no doubt that the applicant was released on bond terms that was fixed by His LordshipJustice Dulu. Having met the terms set by the High court the applicant now seeks variation of the earlier bond terms because one of the sureties has expressed his intention to withdraw. I think that in order to allow the surety to access his log book and in order to allow the applicant to continue enjoying his bond terms it is reasonable to vary the orders made on 20th December 2007. In exercise of my powers I order variation of the bond terms in regard to the number of sureties by making an order that the applicant be released on bond of Kshs.1 million with three (3) Kenyan sureties of Kshs.500,000/= each which shall be approved by the Principal Deputy Registrar of this court.
Dated, signed and delivered at Nairobi this 10th day of November, 2008.
M. WARSAME
JUDGE