[2023] KEHC 25287 (KLR)

Okonkwo v Republic (Criminal Revision 47 of 2023) [2023] KEHC 25287 (KLR) (15 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25287 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 47 of 2023

DR Kavedza, J

November 15, 2023

Between

Francis Obidimma Okonkwo

Applicant

and

Republic

Respondent

(Being an application for revision of the denial of bail pending trial delivered by Hon. Onyina (C.M) in JKIA Criminal case No. 46 of 2019 Republic vs Francis Odinimma & Another)

Ruling

1. The Applicant is the 2nd accused person in JKIA Criminal case No 46 of 2019. He is jointly charged with another with trafficking in a narcotic drug contrary to section 4(a) of the Narcotic Drugs and Psychotropic Substances (Control) Act No 4 of 1994.

2. The applicant has filed a notice of motion application dated April 28, 2022 for the court to invoke its discretion and revise the ruling of Hon Onyina (CM) delivered on April 26, 2019 in which the learned magistrate declined to grant bail/bond to the applicant. The application is supported by the affidavit of the applicant sworn on even date. The gist of the application is that there were no compelling reasons advanced by the learned magistrate in denying him bail.

3. The grounds raised in support of the application are that he has been in custody for three (3) years and prior to his incarceration, he had lived in Kenya since 2011. He maintains that he has a fixed abode given that the police arrested him from his rented apartment where his family was present. He urges the court to release him on reasonable bail/bond terms.

4. The main issue for consideration is whether the court should exercise its discretion and grant the revisionary orders sought.

5. The power of this court in its revisionary jurisdiction is founded under Section 362 of the Criminal Procedure Code which provides that:“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.”Article 165(6) of the Constitution provides that:“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.”

6. I have considered the application and the submissions by the parties. I have also considered the ruling by hon. Onyina dismissing the application by the applicant for bail/bond in which he noted that the accused was a flight risk.

7. Indeed, the paramount consideration in granting bail is whether an accused person would honour attendance to the hearing when and if required to do so. This cardinal principal was enunciated by a court of concurrent jurisdiction in case of Republic vs Danson Mugunya and another [2010] eKLR:“The main function of bail is to ensure the presence of the accused at the trial…Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria enumerated above.”

8. It is not lost in the mind of the court that bail pending trial is a constitutional right of an accused person under article 49(1)(h). It provides that every arrested person has the right to be released on bond/bail on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released. The constitution does not spell out what constitutes compelling reasons. One thing that is clear though is that the onus of discharging the burden of demonstrating that there exist compelling reasons lies with the prosecution.

9. In the present case, although the prosecution participated in the application before the trial court, they failed to file any response in support or in opposition to the application for revision.

10. Be that as it may, the court is enjoined to consider what constitutes compelling reasons and whether any of the compelling reasons relates to the present applicant. What constitutes compelling reasons has been settled by case law and is also spelt out in theJudiciary Bail and Bond Policy Guidelines.

11. I have considered the proceedings of the trial court, wherein it was duly noted that during the arrest of the applicant, he was found in possession of a passport that had expired in 2016. Undoubtedly, there was already evidence suggesting that the applicant had been leading a life of cat and mouse since, at the time of his arrest in 2019, he had lived without a valid passport for three (3) years.

12. I am mindful that being a foreigner is not an impediment to being granted bail, a right that applies to all persons under article 49(1)(h) of the Constitution. However, it is incumbent upon the applicant to dispel the compelling reason that he is not a flight risk. I note that the applicant has alluded to being arrested in the presence of his family. However, he has not disclosed the identities of his family members nor provided information about any properties he owns. The applicant appears to lack roots in the community, and there is no indication of any reason that would make him stay if granted bail

13. I also take judicial notice of the fact that our borders are porous, and in particular, one does not need a passport to travel within the East African Community and therefore, exiting from any of the East African airports is possible. This circumstance, in my view, can be a motivation for the applicant to jump bail and find himself out of the country. For the foregoing reason, I find that there exists a compelling reason to warrant denial of bail/bond to the applicant.

14. I am therefore of the view that the applicant has failed to demonstrate that the learned trial magistrate did not apply the law properly or disregarded the facts of the case in denying him bail. I find that the trial court exercised its discretion judiciously and there is no reason to warrant the setting aside of the ruling of the learned trial magistrate delivered on April 26, 2019 denying the applicant bail. In the upshot, I find that the instant application dated April 28, 2022 unmerited and dismiss it.

15. However, the matter shall be fast tracked and if possible, to be heard on daily basis until conclusion.

16. It is so ordered.

RULING DATED AND DELIVERED VIRTUALLY THIS 15TH DAY OF NOVEMBER 2023. ...............D. KAVEDZAJUDGEIn the presence of:Ms Chege for the State.Applicant absent (VTC).Joy C/A.