[2024] KEHC 12760 (KLR)

Okari v Republic; Obwoge (Accused) (Criminal Revision E070 of 2024) [2024] KEHC 12760 (KLR) (22 October 2024) (Ruling)

Neutral citation: [2024] KEHC 12760 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision E070 of 2024

DR Kavedza & DR Kavedza, JJ

October 22, 2024

Between

Paul Okari

Applicant

and

Republic

Respondent

and

Fredrick Machoka Obwoge

Accused

Ruling

1. The applicant submitted the present application through a letter dated 30th September 2024, seeking revision of the trial court’s decision dismissing his request for a refund of the cash bail paid on behalf of the accused. The applicant asserts that he stood surety for the accused in MCCR 4591 of 2016 and deposited Kshs. 300,000 as cash bail.

2. The applicant claims that although he acted as surety, the accused absconded, and despite his efforts, he was unable to secure the accused’s attendance. Consequently, the cash bail was forfeited to the state without granting him an opportunity to show cause. Additionally, the applicant was arrested and forced to pay Kshs. 100,000 in cash bail to secure his release. He further states that he no longer wished to act as surety for the accused, given the accused’s intent to abscond. The applicant argues that the trial court’s decision to deny his request for a refund of the cash bail was erroneous and has requested this court to revise the ruling issued on 16th September 2024.

3. From the record of the trial court, the accused is facing three counts of offences: stealing contrary to section 268 as read with section 275 of the Penal Code; breaking into a building and committing a felony contrary to section 306(a) of the penal code and obtaining money by false pretences contrary to section 313 of the penal code. The applicant stood surety on his behalf and paid to court a cash bail of Kshs. 300,000 leading to his release.

4. Before the case was determined, the accused absconded and a warrant of arrest was issued. The trial court forfeited the cash bail paid. Subsequently, the accused was arrested and before he could be re arraigned in court, he fled from lawful custody as evidenced by the affidavit sworn by PC Kennedy Oduor. Its on this basis that the applicant prays that the amount paid on the accused’s behalf be reimbursed.

5. These revision proceedings were commenced by the surety, complaining that the process of forfeiture of the cash bail paid was unprocedural and in particular section 131 of the Criminal Procedure Code, Cap 75, Laws of Kenya. In John Mwanje Mutongoya vs. Republic [2017] eKLR, the court underscored the fact that the undertaking that a surety enters into, to ensure that the accused person shall attend court at all times, as and when required, is a serious one. No doubt, when the accused person jumps bail there would be a breach of the undertaking, and that has the consequence that proceedings could be undertaken to realise the security offered by the surety.

6. The procedure to be undertaken where an accused person jumps bail is set out in section 131 of the Criminal Procedure Code. It is required that in such case the surety would be called upon to pay the penalty thereof, or to show cause why it should not be paid. Where sufficient cause is not shown and the penalty is not paid, the court may then proceed to recover the same by raising a warrant of attachment and sale of the movable assets belonging to the surety or his estate, if he is dead. Thereafter, the warrant may be executed. Where the penalty is not paid, and it cannot be recovered by way of attachment and sale, then the court may opt to have the surety committed to jail.

7. It was emphasized in John Mwanje Mutongoya v Republic (supra) and John Taracha Sindikha v Republic [2005] eKLR, that affording the surety a fair hearing is a prerequisite before the recovery proceedings commence or are embarked upon. He should be served with a notice to pay the money within a specified and reasonable period of time, or show cause why his property should not be disposed of for breach of the undertaking to ensure that the accused attends court at all times. The two processes may happen simultaneously or follow each other sequentially, although it would be fairer and prudent for them to follow seriatim.

8. In this case, when the accused absconded, the trial court issued summons to the surety on 17th April 2024 to attend court. Upon his appearance, the surety requested additional time, assuring the court that he knew the accused's location and could produce him. However, instead of granting this request, the court erroneously detained the surety, ordering his release only upon the payment of Kshs. 100,000 in cash bail, which was an incorrect application of the law.

9. The applicant paid the bail and was released. He later located and arrested the accused in Keumbu, Kisii County, as recorded in OB No. 06/22/05/2024. However, the accused escaped from lawful custody, a circumstance beyond the applicant's control. The applicant had fulfilled his obligations as a surety by apprehending the accused and was not responsible for the escape.

10. The procedure employed to forfeit the applicant’s cash bail or security was flawed, as it did not conform with the requirements of Section 131 of the Criminal Procedure Code. Proper procedure required a fair hearing before forfeiture, which was not accorded in this instance.

11. The actions and orders of the trial court in that regard are therefore amenable to revision under section 364 of the Criminal Procedure Code. I accordingly set aside all the orders that were issued by the trial court in the following terms:i.The orders of forfeiture of the cash bail issued by the trial court are hereby set aside.ii.The cash bail of Kshs. 300,000 forfeited to the state by the trial court in Kibera Chief Magistrates’ Court MCCR 4591 of 2016 Republic vs Fredrick Machoka Obwoge shall be reimbursed to the applicant, Paul Okari.iii.The cash bail of Kshs. 100,000 paid by Malkia Scolastica Ogentonto on behalf of the applicant in Kibera Chief Magistrates’ Court MCCR 4591 of 2016 Republic vs Fredrick Machoka Obwoge shall be reimbursed to the depositer.iv.The applicant Paul Okari is discharged as a surety of the accused person in Kibera Chief Magistrates’ Court MCCR 4591 of 2016 Republic vs Fredrick Machoka Obwoge.Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY THIS 22ND DAY OF OCTOBER 2024. .............................................D. KAVEDZAJUDGE