[2022] KEHC 15046 (KLR)

Otinga v Republic (Criminal Revision E089 of 2022) [2022] KEHC 15046 (KLR) (9 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15046 (KLR)

Republic of Kenya

In the High Court at Kakamega

Criminal Revision E089 of 2022

PJO Otieno, J

November 9, 2022

Between

Leonard Khalumi Otinga

Applicant

and

Republic

Respondent

Ruling

1. The Counsel for the accused moved the court, twice; by a letter dated 10. 10. 2022 filed in court on 11. 10. 2022 and by a Notice of Motion dated and filed in court on the same day.

2. The totality of the request for revision is that the trial court, Hon. Ollimo, after taking the plea on the 7. 9.2022 declined accused’s application for bond and remanded him in custody based upon an oral application by the prosecution to deny the accused bond. The trial court is then accused of turning self into star prosecution witness by perusing the other files where the accused had stood surety for other accused, did not seek to hear the accused and chose to decline bond. It was asserted that no summons to compel attendance nor warrants of arrest had been served upon the accused to warrant adverse finding militating against bond being inferred against him and that the ruling by the trial court was a testimony from the bench unknown to the accused. It was then stressed that the accused ails from serious medical conditions and keeping him in incarceration is near death sentence.

3. For those reasons, the provisions of Section 362 of the Criminal Procedure Code was invoked and the court urged to make an order revising the decision by the trial court by granting bond to the accused.

4. When the matter came up for mention on the 24. 10. 2022 the prosecution having filed no response, on the appreciation that revision ought to be a straight forward procedure only entailing perusal of the record by the court to establish if any irregularity, impropriety or illegality occurred leading to a decision or process, merely told the court that the court can deal once the lower court file is availed.

5. As ordered by this court, the lower court file was availed and received by the Registry on the 25/10/2022. The court’s perusal of the file confirm that the proceedings exhibited by the Applicant indeed tally and agree with what is in the file.

Analysis 6. The jurisdiction of this court to make orders of revision in criminal cases even though stipulated by Section 362 of the Criminal Procedure Code, the same must also be seen to be enshrined in the Constitution at article 165 (6) and (7) as a tool for supervision of the lower courts. While under Section 362 of the Code, the power is purposed to interrogate whether any finding, sentence, or order was made correctly, legally and properly, the constitution widens the scope and sets out the tool for purposes of ensuring fair administration of justice.

7. The court’s task in this revision is therefore to peruse the proceedings and to satisfy itself that the orders made by the trial court on the 14. 9.2022 were not only correct, legal and proper but also protect and promote the fair administration of justice.

8. Upon perusal of the record of the trial court, the court appreciates that both the prosecution and the defence were indeed heard and their submissions recorded by the court on the question whether or not the accused ought to be admitted to bond.

9. In coming to the decision it reached, the trial court not only took into account the provisions of article 49 (1) h of the Constitution but also principle (e) of the Bail and Bond Policy Guidelines both of which underscore that bail is a constitutional right for every accused person which can only be denied upon compelling reasons being established to court.

10. In the decision now sought to be revised, the court having been told of court records within its registry, says that she perused the affected three files where the accused had stood surety for others and confirmed that the accused persons in those files had absconded and the accused before the court now as surety had been evasive against arrest despite the warrants of arrest being issued against him. The court notes that the reason for failure to effect the warrants of arrest was that the details given on the bond approval documents were not accurate, false or forged.

11. Having perused those three files and the developments therein, the court then remarked and held:-“I have also had chance to carefully study the photographs attached to the security documents deposited by the accused and I am persuaded that the photographs therein are those of the accused whom I had a chance to see the virtual platform.In view of the foregoing, there is no doubt in my mind that the surety in the case cited by the prosecution and the accused herein is one and the same person.I have thus established that the accused herein is part of a syndicate that are out to undermine the integrity of the criminal justice system in that he bails out suspects only to collude with them to jump bail.I have further established that there are indeed warrants of arrest against the accused herein who is the surety in court files number S. O. No. 28 of 2020, S. O. No. 36 of 2020 and CR.C. No. 229 of 2020. In the premises, I hold and find that the accused herein is not a perfect candidate for bail/bond since there are compelling reasons as to why he should be denied bail/bond.”

12. While bond is a constitutional right of every accused person, the decision on whether compelling reasons have been availed to merit denial is a discretional one vested in the trial court.

13. In Roy Kiama Gichuki –vs- Republic [2006], Makhandia J, as he then was said:-“On matters of bond, the court entertaining an application for bond exercises some discretion. Such discretion must of course, be exercised judiciously and not capriciously.”

14. Similarly, in Republic –vs- Michael Oyamo & Another [2018] eKLR, the court said:-“It is clear from the wording of this article 49 (1) h of the Constitution that the right to bail is not absolute. Where compelling reasons are advanced and the court is persuaded by those reasons, the right to bail is curtailed.”

15. In this matter, being revision, the court can only interfere with the discretion of the trial court on the determination whether compelling reasons to refuse bail had been established, if it be shown by the Applicant that the decision was improperly made, is incorrect on the application of the law either on account of consideration of irrelevant matters of failure to consider relevant matters; where it is illegal or if the order perverts or impedes the fair administration of justice.

16. In its determination, the court observes, and this court considers that observation to have been correctly made, that in standing surety to other accused persons using untrue documents which aids inability to be traced, the accused was perverting the course of justice. This court consider that finding to be aptly accurate and incapable of being faulted on the very reasons put forth by the Applicant.

17. In the end, the court finds that no incorrectness, illegality or impropriety has been demonstrated against the ruling of 14. 9.2022. For that reason the request for revision is held to lack merit and is therefore dismissed.

18. Let the trial court file be remitted back to the court for purposes of the matter being progressed toward finalization.

DATED, SIGNED AND DELIVERED IN OPEN COURT THIS 9TH DAY OF NOVEMBER, 2022. PATRICK J. O. OTIENOJUDGEIn the presence of:Ms. Mburu for the ApplicantMs. Chala for the RespondentCourt Assistant: Polycap Mukabwa