Patrick Gitari Mwiandu v Republic [2017] KEHC 3838 (KLR)
- Citation
- [2017] KEHC 3838 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- MM Kasango
- Case number
- Criminal Revision 120 of 2017
- Language
- English
More details
- Court
- High Court
- Panel
- MM Kasango
- Case number
- Criminal Revision 120 of 2017
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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 appellant.
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.
02
Material facts
Parties
Patrick Gitari Mwiandu
AppellantRepublic
RespondentAmounts and remedies
- Cash Bail Forfeited and Ordered Refunded: KES 100,000
03
Procedural history
Posture
Criminal Revision / Ruling on Revision
04
Questions and positions
Legal issues
- 01
Whether the trial court followed the correct procedure in forfeiting the cash bail posted by the appellant.
- 02
Whether the appellant was accorded the right to be heard before the forfeiture of the cash bail.
Party arguments
- Applicant
- The appellant argued that the trial court did not follow the procedure set out under Section 131 of the Criminal Procedure Code when ordering forfeiture of the cash bail. He contended that he was not given notice to show cause or an opportunity to be heard before the forfeiture order was made.
- Respondent
- The respondent relied on the orders of the trial court, maintaining that the forfeiture was proper following the accused's failure to attend court, and did not specifically address the procedural requirements raised by the appellant.
05
Court’s reasoning
Legal principles
- 01
Section 131 of the Criminal Procedure Code Cap 75; ISAAC KIPLANGAT MUTAI v REPUBLIC [2013] eKLR
A court must make an inquiry and give the surety or accused an opportunity to show cause before ordering forfeiture of bail or bond.
06
Ratio, limits and disposition
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 appellant.
Obiter and limits
- Failure to accord a hearing before forfeiture of bail is a grave breach of the rules of natural justice.
Court disposition
orders of forfeiture vacated; cash bail to be refunded to appellant
- Orders of 4th April and 12th May 2017 vacated.
- Refund of Ksh. 100,000 cash bail to Patrick Gitari Mwiandu.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
CRIMINAL REVISION NO. 120 OF 2017
PATRICK GITARI MWIANDU.......................APPELLANT
Versus
REPUBLIC..................................................RESPONDENT
(Being a Revision from the order of 4th April and 12th May, 2017 of
Hon. W J Gichimu Principal Magistrate in Nanyuki Chief Magistrate’s Court Criminal Case No. 320 of 2016
RULING ON REVISION
1. This court is requested to revise the trial Court’s order made for the forfeiture of the cash bail in respect to Elijah Kamau Maina, which cash bail was made by Patrick Gitari Mwiandu.
BACK GROUND
2. In Nanyuki Chief Magistrate’s Court Criminal Case No. 320 of 2016 there all 11 accused persons. They are facing the charge of being in possession of endangered tree species Contrary to Section 92 of the Wildlife Conservation and Management Act No. 47 of 2013.
3. As stated before there at 11 accused persons in that case. The second accused Elijah Kamau Maina was granted a Ksh. 100,000 cash bail by the trial court. Cash bail was posted by Patrick Gitari Mwiandu. When the 2nd accused failed to attend court the trial court on 4th April, 2017 made the following order:
Court: Warrant of arrest to issue against accused 2. Cash bail forfeited.”
4. The 2nd accused was later apprehended and again the trial court made the following order on 12th May, 2017.
Court: The cash bail deposited by accused 2 is forfeited as per the court order issued on 4/4/2017.
5. It is those two orders that Mwiandu wishes they be revised by this court in the exercise of the power donated under Section 362 of the Criminal Procedure Code Cap 75.
ANALYSIS AND DETERMINATION
6. The trial court’s record indicates that the procedure of forfeiture under Section 131 of Cap 75 was not followed. The trial court failed to ensure that Mwiandu was accorded the right to be heard. Mwiandu should have been served with a notice to show cause. It is only after the trial court had considered that cause shown by Mwiandu that the trial court could have ordered for forfeiture. This is what was stated in the case ISAAC KIPLANGAT MUTAI – V- REPUBLIC [2013] eKLR. Viz:
“On the second issue, the order of forfeiture of the cash bail, it is the requirement of Section 131 of the Criminal Procedure Code that the court will first make an inquiry of the accused or his surety to show cause why his recognizance should not be forfeited. The order forfeiting his cash bail cannot therefore be made simultaneously with the order cancelling bail/bond.
The accused as well as the surety is required to be granted opportunity, to a hearing, to show cause why his bail/bond should not be forfeited to the state. Failure to do so in a grave breach of the rules of natural justice.”
7. In view of the above discussion orders of 4th April, and 12th May, 2017 are hereby vacated. An order is hereby made for the refund to PATRICK GITARI MWIANDU of the cash bail of Ksh. 100,000. It is so ordered.
Dated at Nanyuki this 3rd August 2017
MARY KASANGO
JUDGE
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.