[2021] KEHC 9429 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BOMET

CRIMINAL REVISION NO. E004 OF 2020

NICHOLUS YEGON..............................................1ST APPLLICANT

ENOCK CHERUIYOT.............................................2ND APPLICANT

VERSUS

REPUBLIC...................................................................RESPONDENT

RULING ON REVISION

1. This revision has come to me through a Notice of Motion dated 9th December, 2020 filed by the applicant under Certificate of urgency through the firm of Nyaata & Co. Advocates. The Applicants seek orders:-

(i) THAT this Application be certified urgent, service be dispensed with thereof and the same be heard ex parte in the first instance.

(ii) THAT pending the hearing and determination of this Application inter parties, this court be pleased to restore the bail upon the same terms as they had earlier been placed by trial court.

(iii) THAT the Honourable court be pleased to call for and examine the record of Hon. Magistrate in Bomet Magistrate’s Court Criminal Case No. 1021 of 2020 Republic Vs. Nicholus Yegon and Enock Cheruiyot for the purposes of satisfying itself as to the correctness, legality and propriety of the orders of the court issued on 8th December 2020.

(iv) THAT this Honourable Court issues any other orders that it may deem fit and just to grant.

2. The application is brought on the grounds that the applicants were charged before the Magistrate’s Court Bomet with the offence of assault contrary to Section 251 of the Penal Code. That upon taking plea, they were granted bond. That their bond was cancelled when they attended court on 8th December 2020 on the allegation that they had interfered with witnesses.

3. The application is supported by affidavit of Festus Nyaata Mogere advocate for the applicants who in various averments states that the applicants’ bail was cancelled by the court on the prosecution’s allegation that the applicants had interfered with witnesses. That on 8th December 2020, the court cancelled the Applicants’ bail terms and ordered that they be held in custody pending trial. Counsel further averred that the Applicants had been denied their Constitutional right to bail and were undergoing severe hardship. He stated that the Applicants were willing to comply with any reasonable conditions that the court may attach to their restoration of bail.

4. The Criminal Procedure Code vests in the High Court wide powers in its revision jurisdiction. These are contained in Section 362 through to 366 of the Criminal Procedure Code (Cap.75). Section 362 specifically provides as follows:-

“362. The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.

5. Section 164 details how the revision jurisdiction should be exercised. It provides as follows:-

“364. (1) in the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High court may

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by section 354, 357 and 358, and may enhance sentence;.

(b) in the case of any other order than an order of acquittal, alter or reverse the order.

2. No order under this section shall be made to the prejudice of an accused person unless he had had an opportunity of being heard either personally or through an advocate in his own defence. Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.

3. Where the sentence dealt with under this section has been passed by a Subordinate Court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.

4. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.

5. When an appeal arises from a finding, sentence or order and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.”

6. I called for and examined the trial file. The record shows that on 8th December 2020, when the matter came up the Prosecution Counsel told the court “that the two accused persons have on various occasions threatened our witnesses and the complainant. That explains why we don’t have any witnesses in court today. We pray for cancellation of cash bail terms and issuance of a warning.”

7. The two accused are on record as having denied the Prosecution Counsel’s claim where upon the court asked the Prosecution Counsel whether he had any evidence to support his claim. He undertook to have the Investigations officer swear an affidavit. The court then ruled thus:-

“Court – Prosecution to comply by close of business today. Accused 1 and 2 hereby warned not to interfere with the complainant/prosecution witnesses. Additionally, the cash bail terms of Accused 1 and Accused 2 are hereby cancelled.

Hearing adjourned to 7th April 2021. Accused 1 and Accused 2 to be remanded in custody pending the hearing and determination of this case.

Mention 6th January 2021. Prosecution Counsel to provide documentary proof before the next court date as per the undertaking given by prosecution counsel.

8. From the record above, it is clear that the court acted on the Prosecutor’s complaint and cancelled the Applicant’s bail on account of witness interference.

9. There is sufficient authority that interference with witnesses is a compelling reason within the meaning of Article 40 (i) h of the Constitution. In R .V. Dwight Sagary & 5 Others, Criminal Case No. 61 of 2012, this court held that:-

“As I have held before, interference with prosecution witnesses is in my view a compelling reason not to admit an accused person to bail as such interference goes to the root of the trial and is an affront to the administration of justice. For the prosecution to succeed in persuading the court on this criteria however, it must place material before the court which demonstrate actual or perceived interference. It must show the court for example the existence of a threat or threats to witnesses; direct or indirect incriminating communication between the accused and witnesses; close familial relationship between the accused and witnesses among others.”

10. In R .V. Fredrick Ole Leliman & 4 Others Nairobi Criminal Case No. 57 of 2016, Lesiit J, underscored the need to protect the integrity of the Criminal process thus:-

“Undermining the criminal justice system includes instances where there is a likelihood that witnesses may be interfered with or intimidated; the likelihood that accused may interfere with the evidence; or may endanger an individual where such interferences may occur the court has to determine whether the integrity of the criminal process and the evidence may be preserved by attaching stringent terms to the bond or bail terms; or whether they may not be guaranteed in which case the court may find that it is necessary to subject the accused to pre-trial detention.”

11. There is no doubt in my mind therefore that the trial magistrate was not in error when she acted on the Prosecutor’s complaint. However, it is clear from the record that the order was granted when the Prosecution Counsel was yet to provide evidence of the alleged interference. As stated by Gikonyo J in R .V. Kokonya Muhssin Busia High Court (Busia) Criminal Case No. 2 of 2013:-

“But a general averment that the accused is interfering or has interfered with investigations will not suffice as a compelling reason in terms of Article 49 (1) (h) of the Constitution. The specific instances of interference must be laid before the court, and of course be specifically proved on the basis of real and actual evidence as to persuade the court to make an inference that there are compelling reasons for the accused not to be released.

12. It follows in this case that the trial court ought to have granted the accused a hearing and a chance to challenge the Prosecutor’s assertion before cancelling their bond. At the very least, the trial court ought to have allowed the Prosecution time to file affidavit evidence.

13. I find that the order of the court cancelling the Accused’s bond without proof of their alleged interference with witnesses, though lawful and within discretion of the trial court, was made arbitrarily.

14. I set aside the orders of the trial court cancelling the Accused’s bond and substitute therefor an order reinstating the bond. For clarity, the Prosecution is at liberty to make any necessary application before the trial court to safeguard the integrity of the criminal process. It is also the jurisdiction of the trial court to consider such application and exercise discretion judiciously.

15. The file is returned to the trial court to proceed with the trial.

16. Orders accordingly.

Ruling delivered dated and signed at Bomet this 28th day of January, 2021.

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R. LAGAT-KORIR

JUDGE

Ruling delivered in the presence of Mr. Leteipa holding brief for Mr. Nyaata for the Applicants, Mr. Wawire holding brief for Mr. Mureithi for the Respondent, and Kiprotich (Court Assistant).