[2022] KEHC 16353 (KLR)

Ondieki v Republic (Criminal Revision E215 of 2022) [2022] KEHC 16353 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16353 (KLR)

Republic of Kenya

In the High Court at Eldoret

Criminal Revision E215 of 2022

RN Nyakundi, J

December 16, 2022

Between

Wilfred Ondieki

Applicant

and

Republic

Respondent

Ruling

1. The Applicant, Wilfred Ondieki, was charged in Eldoret Criminal Case No. E136 of 2022 with the offence of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act. An alternative charge was also preferred against him being committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. He pleaded not guilty to both charges and is now remanded in custody at Eldoret GK Prison till 25/1/2023 when the case is coming up for hearing. This Revision arises from the ruling of the trial Magistrate Hon. C. Menya (SRM) delivered on October 31, 2022.

2. The Applicant has now filed the present application under Certificate of urgency seeking to be released on bail pending hearing. The application is premised on the following grounds;1. That the Applicant is facing a case of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act where he has pleaded not guilty to the charge.2. That the Applicant is now remanded in custody at Eldoret GK Prison till 25/1/2023. 3.That the offence is bailable under the Constitution of Kenya and the Applicant has a constitutional right to bail pending hearing on reasonable terms and conditions pending trial and determination of the case.4. That the Applicant is ready and willing to abide to any and all reasonable bail terms and conditions the Honourable Court may impose.5. That the Applicant is ready and willing to attend Court, police station, criminal investigation department, or any other place and comply with any requirement or condition that this Honourable Court may impose or give.6. That the Applicant has a known and fixed place of residence in Nyamira County.7. That the Applicant has a known residence in Eldoret town, Langas estate where his family resides.8. That the Applicant is not a flight risk.9. That there are no compelling reasons why the Applicant should not be admitted to bail to enjoy his liberty as he awaits his trial as opposed to unnecessary and needles incarceration.10. That there is absolutely no evidence presented that the accused person will likely interfere with investigations and / or witnesses of this trial if he released on bond and bail.11. That this Honourable Court may issue orders restraining the accused person from in any way accessing the witnesses in this case.12. That the Applicant undertakes that he will not in any way interfere with investigations, witnesses or the prosecution of this trial if released on bond or bail.13. That it is only fair and just for the Applicant to be admitted to bond/bail.14. That the accused has not in any way threatened witnesses.

3. The Application is filed together with a supporting affidavit sworn by the Applicant on October 27, 2022, in which he deposed that he was arrested and arraigned in Court where he pleaded not guilty to the charge of defilement contrary to Section 8(1) as read with section 8(3) of the Sexual Offences Act and is now in custody till 25/1/2023 when the case is scheduled for hearing.

4. The Applicant contends that the offence which he has been charged with is bailable under the Constitution of Kenya and that he has the right to bail subject to the terms and conditions prescribed by the Court. The Applicant is ready and willing to abide with any and all the reasonable conditions that the Court may impose.

5. The Applicant maintains that he has a fixed place of aboard in Nyamira County at Rigoma village and house in Eldoret town, at Langas Estate where he and his family reside and therefore not a flight risk.

6. The Applicant further deposes that there are no compelling reasons as to why he should not be granted bail as he awaits his trial. The Applicant maintains that he will not interfere with the investigations, prosecution witnesses or the trial if released on bail. The Applicant further argues that there is no evidence to show that he will interfere with the witnesses and the Court may issue orders restraining him in any way from accessing the prosecution witnesses in this matter.

7. The Applicant co tends that his denial of bail is not justifiable and or grounded on any reasonable grounds.

Determination 8. The only issue is whether the Application is merited and whether bond pending appeal ought to be granted.Articles 165 (6) and (7) of the Constitution provide that,(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.”

9. By virtue of the above Constitutional provision, the scope of this court’s revisionary jurisdiction is specifically prescribed 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.”Section 364 of the Criminal Procedure Code provides that:(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.”

10. In the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR, Odunga J, held as follow;In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”

11. From the foregoing, it is clear that although the High Court has wide powers on revision, when the court is called to by an Applicant or on its own motion. It has to satisfy itself as to do so the correctness, legality or propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of a subordinate court. The High Court will only exercise its jurisdiction if satisfied that any finding sentence or order recorded or passed or the regularity of any proceedings before a sub-ordinate court did not meet the required standards as to correctness legality and propriety.

12. These powers are not to be exercised in matters where an appeal lies from the finding, sentence or order of a sub-ordinate court and no appeal has been brought. It is provided in mandatory terms that no proceedings by way of revision shall be entertained at the insistence of a party who could have appealed, see Section 364(5) Criminal Procedure Code, above. However, the jurisdiction of this Court is wide and exists in all orders, interlocutory or final except that the court will not on revision alter an order of acquittal to an order of conviction.Justice Odunga in Joseph Nduri Mbuvi -v-R (supra) stated: -In my view, the revisionary jurisdiction of the High Court should only be invoked where there are glaring acts or omissions but should not be a substitute for an appeal. In other words, parties should not argue an appeal under the guise of a revision. It is for this reason that the decision whether or not to hear the parties or their advocates is discretionary save for where the orders intended to be made will prejudice the accused person. As was stated by the High Court of Malaysia in Public Prosecutor vs. Muhari bin Mohd Jani and Another [1996] 4 LRC 728 at 734, 735:“The powers of the High Court in revision are amply provided under section 325 of the Criminal Procedure Code subject only to subsections (ii) and (iii) thereof. The object of revisionary powers of the High Court is to confer upon the High Court a kind of “paternal or supervisory jurisdiction” in order to correct or prevent a miscarriage of justice. In a revision the main question to be considered is whether substantial justice has been done or will be done and whether any order made by the lower court should be interfered with in the interest of justice…If we have been entrusted with the responsibility of a wide discretion, we should be the last to attempt to fetter that discretion…This discretion, like all other judicial discretions ought, as far as practicable, to be left untrammeled and free, so as to be fairly exercised according to the exigencies of each case.”

13. The question which I have to consider is whether the decision by the trial magistrate denying the Applicant bail was incorrect, illegal or had improprieties.

14. Article 49(1) (h) of the Constitution provides that: -An accused person has the right…(h)to be released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.”"347 of the Criminal Procedure Code (1) Save as is in this Part provided –(a)A person convicted on a trial held by a subordinate court of the first or second class may appeal to the High Court; and(b)(Repealed by 5 of 2003, s. 93. )(c)An appeal to the High Court may be on a matter of fact as well as on a matter of law. ““348A.(l)When an accused person has been acquitted on a trial held by a subordinate court or High Court, or where an order refusing to admit a complaint or formal charge, or an order dismissing a charge, has been made by a subordinate court or High Court, the Director of Public Prosecutions may appeal to the High Court or the Court of Appeal as the case may be, from the acquittal or order on a matter of fact and law.(2)If the appeal under section (1) is successful, the High Court or Court of Appeal as the case may be, may substitute the acquittal with a conviction and may sentence the accused person appropriately.”

15. There is no right of appeal from the decision of the trial magistrate denying the accused person bail since the Applicant has not been acquitted or convicted nor are there other circumstances as provided under Section 348 A of the Criminal Procedure Code supra, the Applicant was in order when he approached this court by way of revision. The ruling of the trial magistrate is basically an order denying the Applicant bail for which this court has jurisdiction to call for the record and examine its correctness.

16. In the present case, the accused herein is facing the offence of defilement and he is entitled to be presumed innocent until the contrary is proved. If he is denied bail, the same would not amount to derogation of his right to be release of bail pending trial but rather the simple reason that the court would have found a compelling reason within the meaning of the constitution to deny bail in a certain case.

17. The right to bail pending trial is not absolute as it can be denied where compelling reasons to deny him bail are established. The Criminal justice process is not just about the fair trial of the accused. The court must balance the interests of the victims of crime and the rights of the accused. The law has been put in place to ensure that the victims’ interests must be considered.

18. In this case, having considered the nature of the charges, the fact that the complainant is a minor and a student in class (8) eight who was preparing for KCPE exams, I find that the trial Magistrate was right in holding that there were compelling reasons to deny the Applicant bail. I find that the Applicant has failed to demonstrate that the trial Court committed any illegality, mistake or irregularity to warrant any interference by this court in the course of its supervisory jurisdiction. As such, this application must fail.

19. I find no reason to interfere with the order of the trial Magistrate. The trial has a hearing date and the case is likely to be disposed off expeditiously.

20. I find that the application is without merits and is dismissed.

21. It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 16TH DAY OF DECEMBER, 2022. ............................R. NYAKUNDIJUDGEIn the presence of;Mr Matekwa for Momanyi for the applicant