[2024] KEHC 6665 (KLR)
The court found that the accused's failure to attend court was not deliberate but due to hospitalization, as supported by medical evidence. The accused voluntarily presented himself to court without compulsion, and his surety remained willing to continue. The prosecution did not oppose the application, and there was...
Source-derived case information.
- Citation
- [2024] KEHC 6665 (KLR)
- Parties
- Applicant: Joseph Otieno Ogul; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision E100 of 2024
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Bond Suspension
- Outcome
- application for revision allowed; bond reinstated
- Judges
- RE Aburili
- Legal Topics
- Bond Suspension, Bail Conditions, Failure to Attend Court, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Otieno Ogul
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Bond Suspension
Legal Issues
- 1 Whether the trial court erred in suspending the accused's bond after his failure to attend court due to illness.
- 2 Whether the accused's absence was deliberate or justified by medical reasons.
- 3 Whether the surety's obligations were properly considered in the suspension of bond.
Ratio Decidendi
The court found that the accused's failure to attend court was not deliberate but due to hospitalization, as supported by medical evidence. The accused voluntarily presented himself to court without compulsion, and his surety remained willing to continue. The prosecution did not oppose the application, and there was ongoing negotiation for an out-of-court settlement that was hindered by the accused's incarceration. The trial court's order suspending the bond was therefore unjustified, and the bond should be reinstated on the original terms with the same surety.
Court Disposition
application for revision allowed; bond reinstated
Orders
- Order of 11th March 2024 suspending surety bond is revised and set aside.
- Suspended bond is reinstated on the same terms with the same surety.
Full Case Text
Judgment text and source record
30 paragraphs
Ogul v Republic (Criminal Revision E100 of 2024) [2024] KEHC 6665 (KLR) (4 June 2024) (Ruling)
Neutral citation: [2024] KEHC 6665 (KLR)
Republic of Kenya
In the High Court at Kisumu
Criminal Revision E100 of 2024
RE Aburili, J
June 4, 2024
Between
Joseph Otieno Ogul
Applicant
and
Republic
Respondent
Ruling
1. This Ruling determines the application dated 15th May 2024 seeking for revision of the ruling and order of the trial court in Winam SPM Criminal Case No. 179 of 2023 made on 11th March 2023 suspending bond granted to the accused person pending trial.
2. The trial court file/record was called for and availed on 24th May 2024. I have perused the said trial court record and heard counsel for the accused and the prosecution counsel.
3. The offence with which the accused is charged is obtaining money by false pretences. The amount involved is Kshs.760,000 belonging to the complainants, Erick Otieno Odongo and Phillip Omondi Outa.
4. The accused was released on bond of Kshs.500,000 plus one surety of similar amount or to deposit cash bail of Kshs.300,000. The first surety was 76 years old and was rejected. The 2nd surety who was approved is said to be the accused person’s brother. The accused faithfully attended court and the hearing the hearing commenced.
5. On 18th December 2023, the accused failed to attend court. There was no information as to his whereabouts then. He did not attend court until 11th March 2024 when he appeared on his own accord in court and produced treatment notes showing that he had been hospitalized on 19th December 2024 and discharged on 24th December 2024. The court suspended his bond and he was placed in custody.
6. He is before this court pleading that the orders of the trial court be revised because he did not deliberately fail to attend court, is of poor health, aged and his surety is willing to continue being his surety. That he did not fail to attend court deliberately.
7. The prosecution counsel does not oppose the application for revision of the lower court ruling for reasons that the accused personally attended court on the day that his bond was suspended, without being arrested and that it is the surety who should have reported to court the ailment of the accused which duty the surety abdicated.
8. Having considered the application which is unopposed, and upon perusal of the hospital treatment and discharge summary produced in court on the day that the accused person’s bond was suspended, I am in agreement that the accused fell ill and was hospitalized as shown by the hospital treatment notes. There is also evidence that the accused and complainants were negotiating for an out of court settlement of the case but his incarceration made it impossible to conclude the negotiations.
9. The accused brought himself to court without a warrant of arrest being effected.
10. I am persuaded that he did not intend to abscond and that is why the surety is still willing to remain his surety. I observe that the surety was not discharged.
11. In the premises, I revise the order of 11th March 2024 suspending surety bond granted to the accused person in Winam SPMCC No. E179 of 2023.
12. I set aside the said order and substitute it with an order reinstating the suspended bond, with the same surety and same terms to apply.
13. Therefore, unless otherwise lawfully held, the accused Joseph Otieno Ogul shall therefore be released from prison on the surety bond terms granted by Winam Law Courts in Winam SPM CR Case No. E179 of 2023.
14. Lower court file to be returned for the case against the accused person to continue as scheduled.
15. This file is closed.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 4THDAY OF JUNE, 2024R. E. ABURILIJUDGE