[2022] KEHC 10239 (KLR)

Ogechi v Republic (Miscellaneous Criminal Application E419 of 2021) [2022] KEHC 10239 (KLR) (Crim) (14 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10239 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E419 of 2021

LN Mutende, J

June 14, 2022

Between

Evans Ogechi

Applicant

and

Republic

Respondent

Ruling

1. Evans Ogechi, the Applicant, was granted a cash bail by the Law Enforcement Officers of Ksh. 50,000/- to appear in court on 5th October, 2021 to answer charges as follows:Count I- Carrying on the business of a Pharmacist in premises not registered by the Pharmacy and Poisons Board contrary to Section 23 (1) as read with Section 23 (6) of the Pharmacy and Poisons Act, Cap. 244 laws of Kenya. Particulars being that on the 4th day of October, 2021 at Becmed Chemist located in Kenya Pipeline Estate Area in Embakasi Sub-county within Nairobi County, was found carrying on the business of a Pharmacist in premises which has not been registered by the Pharmacy and Poisons Board, otherwise in contravention of the aforementioned Act.Count II- Carrying on the business of a Pharmacist while not registered as a Pharmacist by the Pharmacy and Poisons Board contrary to Section 19(1) (a) as read with Section 19 (2) of the Pharmacy and Poisons Act, Cap. 244 laws of Kenya. Particulars being that on the 4th day of October, 2021 at Becmed Chemist located in Kenya Pipeline Estate area in Embakasi Sub-county within Nairobi County, was found carrying on the business of a Pharmacist while not having been registered as a Pharmacist by the Pharmacy and Poisons Board otherwise in contravention of the aforementioned Act.Count III– Possession of part 1 poisons while not being an authorized seller of poisons contrary to Section 26(1) (b) as read with Section 26(2) of the Pharmacy and Poisons Act, Cap. 244 laws of Kenya. Particulars being that on the 4th day of October, 2021 at Becmed Chemist located in Kenya Pipeline Estate area in Embakasi Sub-county within Nairobi County, was found in possession of Part 1 Poisons to wit not being an authorized seller of poisons, otherwise in contravention of the aforementioned Act.

2. On the stated date he made no appearance as required therefore the trial court issued a warrant of arrest against him and forfeited the cash bail.

3. On the 6th October, 2021 the appellant appeared in court and explained that he was unwell. An explanation that was acceptable to the court which lifted the warrant of arrest but did not order refund of the money. Charges were read to the applicant who admitted having committed the offences as set out and convicted and sentences were meted out thus:Count I- A fine of Ksh 40,000/- and in default to serve 4 months imprisonment.Count II- A fine of Ksh 20,000/- and in default to serve 4 months imprisonment.Count III- A fine of Ksh 30,000/- and in default to serve 4 months imprisonment.

4. It is notable that the applicant did not make an application for refund of the cash bail before the trial court.

5. Through a Notice of Motion dated 18th November, 2021, the applicant seeks revision, review and/or setting aside of the proceedings of the sum forfeited by the court so that it can be refunded to the applicant.

6. The application is supported by an affidavit deposed by the applicant where he deposes that the cash bail that was to secure his attendance was forfeited to the State yet he had no intention of jumping bail as he was indisposed. That it was erroneous on the part of the court to forfeit the cash bail after he attended court.

7. At the hearing Mr. Mokaya learned Counsel for the Applicant urged that the applicant presented to the court medical chits to confirm that he was unwell.

8. Mr. Kiragu learned Counsel for the State argued that the application should have been made before the trial court and if denied he would be properly before this court. That the trial court should have heard reasons for declining to order refund of the cash bail.

9. In a rejoinder, Counsel for the applicant argued that the applicant opted to make the application before this court because it has powers to call for the lower court file and examine the proceedings.

10. I have carefully considered rival arguments of both parties. The Statute confers revisional jurisdiction upon this court. In exercising the supervisory jurisdiction over the lower court I must carefully and critically peruse and examine the proceedings/record of the trial court with a view of correcting an illegality, if any or material irregularity. This is provided for by Article 165 (6) (7) of the Constitution and Section 362 as read with Section 364 of the Criminal Procedure Code (CPC) that stipulate thus:Article 165(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.Section 362The 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..Section 364(1)Powers of High Court on revision (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 sections 354, 357 and 358, and may enhance the sentence;(b)In the case of any other order other 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 has had an opportunity of being heard either personally or by 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 lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.

11. In doing so, this court must be reminded not to reverse an order which an appeal lies thereto.

12. The main contention herein is the fact of a warrant of arrest that had been issued having been lifted but the order forfeiting the cash bail was overlooked. The applicant was admitted to bail prior to being charged as provided by Section 123 of the CPC. At the outset he did not fulfill obligations set of appearing before the court. But he appeared the following day and tendered an explanation which must have been plausible as it moved the court to set aside the warrant of arrest. He told the court that he had a letter from the Doctor to prove he was indisposed. When the court lifted the warrant, having believed the statement made by the applicant, failure to cancel the order of forfeiture was irregular, an illegality that must be corrected.

13. As correctly pointed out the application should have been made before the trial court prior to it becoming fuctus officio. But, this does not bar this court to exercise its revisional jurisdiction to correct the illegality in the interest of justice.

14. Therefore, I call to this court the order of the lower court forfeiting the cash bail which I quash and I set aside. Consequently, the cash bail deposited by the applicant shall be released forthwith to the depositor.

15. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:Mr. Mokaya for ApplicantMs. Akunja for the RespondentCourt Assistant – Mutai