[2016] KEHC 7669 (KLR)
The court found that the applicants were entitled to a review of their bail terms because there was no reasonable explanation for the disparity between the bail imposed on them (Kshs. 5 million) and that imposed on their co-accused (Kshs. 3 million) facing the same charges. The court emphasized the importance of...
Source-derived case information.
- Citation
- [2016] KEHC 7669 (KLR)
- Parties
- Applicant: Nasir Haiderali Jessa; Applicant: Zurfikar Haiderali Jessa; Applicant: Nargis Aziz Jessa; Respondent: Director of Public Prosecutions; Respondent: The Resident Magistrate’s Court (Anticorruption Court)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 105 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Review of Bail Terms
- Outcome
- application for review of bail terms allowed
- Legal Topics
- Bail Review, Bond Terms, Flight Risk, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nasir Haiderali Jessa
Applicant
Zurfikar Haiderali Jessa
Applicant
Nargis Aziz Jessa
Applicant
Director of Public Prosecutions
Respondent
The Resident Magistrate’s Court (Anticorruption Court)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Review of Bail Terms
Legal Issues
- 1 Whether the bail terms imposed on the applicants were excessive and unjustified compared to those imposed on co-accused persons.
- 2 Whether the applicants presented a flight risk warranting higher bail terms.
- 3 Whether uniformity in bail/bond terms should be maintained among accused persons facing similar charges.
Ratio Decidendi
The court found that the applicants were entitled to a review of their bail terms because there was no reasonable explanation for the disparity between the bail imposed on them (Kshs. 5 million) and that imposed on their co-accused (Kshs. 3 million) facing the same charges. The court emphasized the importance of uniformity in bail/bond terms to avoid perceptions of bias or influence by extraneous factors. The applicants' cooperation with investigations, voluntary appearance for plea, and compliance with interim bail conditions, including surrendering their passports, demonstrated that they were not flight risks. The court concluded that the bail terms should be reviewed downward to Kshs....
Court Disposition
application for review of bail terms allowed
Orders
- Each applicant is admitted to a cash bail of Kshs. 3 million.
- In the alternative, each applicant may deposit a bond of Kshs. 3 million with two sureties of a similar amount to be assessed by the trial court.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CRIMINAL APPLICATION NO.105 OF 2016
NASIR HAIDERALI JESSA …….………....…………………1ST APPLICANT
ZURFIKAR HAIDERALI JESSA…………….......……………2ND APPLICANT
NARGIS AZIZ JESSA………………………….…………….3RD APPLICNAT
VERSUS
DIRECTOR OF PUBLIC PROSECUTIONS………...........…1ST RESPONDENT
THE RESIDENT MAGISTRATE’S COURT
(ANTICORRUPTION COURT)……………...........………….2ND RESPONDENT
RULING
The application before me is by Notice of Motion dated 29th March, 2016 seeking a review of bail terms against the three Applicants who were charged alongside three others in the Chief Magistrates Court at Nairobi in Cr. Case No. 478 of 2016. Apart from the three Applicants, the other accused persons were released on a cash bail of Kshs. 3 million each. In the respect of the three Applicants, each of them was granted a cash bail of Kshs. 5 million or a bond of a similar amount with two sureties of a similar amount.
While opposing the application herein, learned State Counsel Ms. Atina submitted that in the respect of the three Applicants who were the 3rd, 4th and 5th Accused persons respectively, they faced a serious offence in count I of conspiracy to defraud Imperial Bank Ltd the sum of Kshs. 9 Billion. Whereas I agree that the bail terms are commensurate with the offence in that the charge involves a colossal sum, it is important to bear in mind that an accused is always deemed innocent unless otherwise proven. Whereas it is stated that the amount of Kshs. 29 Billion related to the three Applicants, I have looked at the handwritten ruling on bail by the learned trial magistrate which indicates that the 1st and the 2nd accused persons who were also charged in Count I were granted a bail of Kshs. 3 million. There is no explanation as to why there was that big disparity in the bond terms granted. Uniformity in granting bail/bond should be adhered to so that a court is not deemed to be influenced by extraneous matters.
Having observed that, as rightly submitted by counsel for the Applicant Mr. Kimanthi for the 1st Applicant and Ms. Singh for the 2nd and 3rd Applicants, the antecedent of the Applicants is a factor for consideration. It was not disputed that before they were charged they cooperated with the investigations and even presented themselves voluntarily for plea. After the plea, they were given a moderate cash bail of Kshs. 500,000/= pending a substantive ruling on bail, they still presented themselves to court. I do not think that this is the time they are a flight risk particularly having regard that their passports were deposited to court. Accordingly, I find this as a good case in which the bail terms for the three Applicants should be reviewed.
In the end, the three Applicants are hereby admitted each to a cash bail of Kshs. 3 million. In the alternative, each shall deposit a bond of an equal amount with two sureties of a similar amount to be assessed by the trial court. It is so ordered.
DATED and DELIVERED this 29th day of April, 2016
G.W. NGENYE-MACHARIA
JUDGE
In the presence of:
Kimanthi for the 1st Applicant
Glorius holding brief for Ms. Singh for the 2nd and 3rd Applicants
M/s Atina for the Respondent.