[2015] KEHC 1859 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT MALINDI

HIGH COURT REVISION NO. 200 OF 2015

REPUBLIC ........................ APPLICANT

VRS

ALEX OTIENO ONYANGO ......................... RESPONDENT

RULING

The accused in this case was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act. The state objected to the release of the accused on bond. The trial upheld the State's objection leading to an application for bond being heard by this court. On 23rd July 2015, I allowed the accused's application to be released on bond and set out the bond terms.

The accused has been in custody since 13th April, 2015. the record shows that two witnesses testified. The trial magistrate is on maternity leave. The complainant and her mother have testified. The record of the subordinate court shows that Mr. Yusuf Shikanda, SRM dealt with the issue of bond approval. One surety was presented before Mr. Shikanda and he was rejected. A second surety was presented and the court approved him. The approval of that surety led to the current objection by the State.

The grounds for the current objection are that the surety never gave instructions for his land to be valued, the surety confirmed that his property is not a beach plot while the valuation report is for a beach front property. It is also contended that the surety does not know the accused very well and that the valuation of the property and the authenticity of the valuation report was not taken into account by the trial court.

Mr. Nyongesa, prosecuting counsel informed the court that the first surety was declined by the court as the valuation was doubtful. Counsel submitted that the surety testified that his property has no beach front and that he did not engage or pay the valuer. His son Julius is the one who asked for his title deed and also knows the accused. The surety only knows the accused's wife who stays in Watamu. It is further contended that the valuer informed the court that it was Julius who instructed him. One Francis was also involved yet the surety does not have a son by that name.

Counsel stated that the prosecution sought to undertake a second valuation but the court denied them more time. Contrary to the position taken by the prosecution to oppose the surety, the ruling of the subordinate court indicates that the prosecution has not issues with the surety. Counsel relies on the two Cases of Simon Githaiga Malombe v Republic, Criminal Appeal No.314 of 2010 and that of Mombasa High Court Criminal Revision No.75 of 2015: Baktash Akasha & Others v Republic.

It is Mr. Nyongesa's submission that proximity between the surety and the accused is important as held in the above two cases. According to the prosecution, no valuation was conducted. The date the valuer visited the land is not indicated. Counsel urged the court to reverse the ruling of the trial court and find the surety as unfit to stand surety for the accused.

Mr. Ole Kina, counsel for the accused opposed the application. Counsel submitted that the surety informed the court that he gave his title to his son Julius together with Francis for purposes of being a surety. The valuer explained how he was driven by Julius in the company of John to the land. The prosecution was given ample time to secure another valuation but failed to do so. Mr. Ole Kina submitted that allegations that the title deed is encumbered by a Settlement Fund Trustee Loan are incorrect. There is an official search from the relevant land registry as well as the title deed itself which has no encumbrance noted.

It is further stated that the valuer was not barred from conducting other valuations. The purpose of the surety is to only ensure that the accused attends court whenever he is required to. Should he fail then sanctions follow and the surety's asset can be auctioned. The surety is aware of these sanctions. The right to bail is provided for under the Constitution. The surety explained that the accused trained his son to be an artist.

From the record of the trial court, the main issues raised by the prosecution is that the surety does not know the accused and that the property offered as security was not properly valued. It should not be lost that the purpose of releasing an accused person on bond is to secure his attendance during the hearing or mention of the case. It is not the intention of the law to put huddles in-front of accused persons so that they undertake their cases while in custody. Article 49 (h) provides for the right of an accused person to be released on bail or bond on reasonable conditions unless there are compelling reasons not to be released. This court granted the accused a bond of ksh.15,000,000/- (Fifteen Million) with one Kenyan surety. The accused is also to sign a personal bond of kenya shillings ten million (Ksh.10,000,000/-). The bond terms are well enumerated in the ruling of 23rd July, 2015.

The wording of section 124 of the Criminal Procedure Code is that the bail or bond terms should be provided to the extent that the court or police officer thinks sufficient. This is an old provision which presumes that all prosecutors are police officers. Currently, most of the prosecutors are professional advocates. My view is that it is the court that should be satisfied as to the sufficiency of the security. It is the court that would ultimately issue an order releasing the accused and not the prosecutor. The court can as well overrule the prosecutor in the event that the prosecutor objects as to the sufficiency of the surety. Being a judicial process, it means therefore that it is up to the judicial officer to make a decision even if the prosecutor is not satisfied with what is being offered as security or the surety. Section 123 (2) calls for the amount of bail to be fixed and not to be excessive. Under section 127 of the Criminal Procedure Code, the court can call upon a released accused to provide sufficient sureties if it is later found that his release was made on insufficient surety.

The record of this file shows that several judicial officers have issued rulings relating to the issue of bond. On 22nd April, 2015 the trial magistrate upheld the prosecution objection to the release of the accused on bond. The trial court delivered another ruling on 9th June, 2015 and once again declined the accused's request to be released on bond. On 3r September, 2015 Mr. Shikanda delivered a ruling and declined to approve the surety that had been brought by the accused. This was as a result of my ruling of 23/7/2015. the current dispute is arising from the ruling of Mr. Shikanda delivered on 16th October, 2015 whereby he approved the second surety. There is another ruling pending before me in relation to the issue of blood tests extracted from the accused.

A criminal trial should not only be fair but should be seen to be fair to the accused. The trial magistrate is on leave. The time taken shuffling this file from one judicial officer to the other was sufficient to have this matter fully heard and determined. The parties could have agreed to either start the case afresh before another magistrate or proceed from where it had reached. The guilt or otherwise of an accused person is determined at the end of the hearing. An accused person should not be made to feel that he or she has already been convicted even before the case has been fully heard. The accused was granted bond terms to secure his release. The next step is to only ensure that the surety understands his role and is capable of securing the attendance of the accused in court. It is quite impossible to conclude with finality that the accused would definitely jump bail and abscond. It should also be understood that there is no co-relation between high bond terms and attendance of the accused in compliance with the bond terms. At times those who commit minor offences and are released on minimal bond terms abscond. Even if the accused avails a surety worth above Ksh.15,000,000/- and to the satisfaction of the prosecution, the accused may still decide to abscond. It is impossible to know the intention of a human being. Even the devil does not know a man's next action. All what we should expect and hope is that the accused will comply with the terms of his release. Should he jump bail, then the next legal action is to issue a warrant of his arrest and to deal with the surety as provided by the law. I saw the surety in court and he informed me of his willingness to stand surety for the accused. He is aware of the sanctions should the accused jump bail.

The court plays the role of an umpire. It is not the role of the court to be overwhelmed by the intrinsic feelings or views of the prosecution that the accused person may not abide by the bond terms. The court has to balance between the accused's Constitutional right to be released on reasonable bond terms and the prosecution's objection. The current dispute involves the sufficiency of the surety. The land offered as security is Plot Number Ngomeni Squatter Settlement Scheme/2079. The plot is 3. 386 Hectares. I have seen the original title deed and the same has no encumbrance. This is in line with the search dated 28th September, 2015 . If there was any loan payable to the Settlement Fund Trustees, then no title deed could have been issued until the loan could have been cleared. The learned magistrate was right by ignoring the letter from the Land Registrar alleging that there was loan due to the Settlement Fund Trustees. The valuation report indicate that the property has a beach front yet the owner seems not to be aware of that fact. It is the duty of the accused to provide surety to the satisfaction of the court. Basemark Valuers valued the property at Ksh.25 million. This is a professional opinion by the valuer. There are photographs showing some structure on the subject property. There is need to confirm the findings of the valuer to the satisfaction of the court and the prosecution.

In order to avoid any dispute on the sufficiency of the property offered as surety, I do make the following orders:

The prosecution to engage the services of a Government Valuer to value Plot Number Ngomeni Squatter Settlement Scheme/2079 and file another valuation report within seven (7) days hereof.

In default of compliance with the above order, the ruling of Mr. Shikanda shall take effect and the surety shall stand approved.

The matter shall be mentioned before me on the 5th November, 2015 for purposes of confirming that order one (a) above has been complied with. I will make further orders after seeing the valuation report, if any, by the prosecution.

Thereafter this matter to be mentioned before the Chief Magistrate for further directions on how the case shall be heard and concluded without unreasonable delay as provided by article 50 (1) (e) of the Constitution.

In the meantime, the accused shall remain in custody.

Dated, signed and delivered at Malindi this 28th day of October, 2015.

SAID J. CHITEMBWE

JUDGE