[2017] KEHC 3838 (KLR)

[2017] KEHC 3838 (KLR)

The High Court found that the trial court failed to comply with the mandatory procedure under Section 131 of the Criminal Procedure Code by not giving the appellant, who posted the cash bail, an opportunity to be heard before forfeiture. The court emphasized that the rules of natural justice require that a surety or person who posts bail must be served with a notice to show cause and be given a chance to explain before any forfeiture order is made. The simultaneous issuance of a warrant of arrest and forfeiture of bail without such inquiry was a grave breach of procedural fairness. Consequently, the forfeiture orders were set aside and the cash bail was ordered to be refunded to the...

Citation
[2017] KEHC 3838 (KLR)
Parties
Appellant: Patrick Gitari Mwiandu; Respondent: Republic
Court
High Court
Court Station
High Court at Nanyuki
Jurisdiction
Kenya
Judgment Date
3 August 2017
Case Number
Criminal Revision 120 of 2017
Procedural Posture
Criminal Revision / Ruling on Revision
Outcome
orders of forfeiture vacated; cash bail to be refunded to appellant
Judges
MM Kasango
Legal Topics
Bail Forfeiture, Right to Be Heard, Procedural Fairness
Source Language
English
Criminal Law Civil Procedure Bail Forfeiture Right to Be Heard Procedural Fairness

Case Brief

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Parties

Patrick Gitari Mwiandu

Appellant

Republic

Respondent

Procedural Posture

Criminal Revision / Ruling on Revision

Legal Issues

  1. 1 Whether the trial court followed the correct procedure in forfeiting the cash bail posted by the appellant.
  2. 2 Whether the appellant was accorded the right to be heard before the forfeiture of the cash bail.

Ratio Decidendi

The High Court found that the trial court failed to comply with the mandatory procedure under Section 131 of the Criminal Procedure Code by not giving the appellant, who posted the cash bail, an opportunity to be heard before forfeiture. The court emphasized that the rules of natural justice require that a surety or person who posts bail must be served with a notice to show cause and be given a chance to explain before any forfeiture order is made. The simultaneous issuance of a warrant of arrest and forfeiture of bail without such inquiry was a grave breach of procedural fairness. Consequently, the forfeiture orders were set aside and the cash bail was ordered to be refunded to the...

Court Disposition

orders of forfeiture vacated; cash bail to be refunded to appellant

Orders

  • Orders of 4th April and 12th May 2017 vacated.
  • Refund of Ksh. 100,000 cash bail to Patrick Gitari Mwiandu.