[2023] KEHC 26952 (KLR)

Republic v Bangura (Criminal Revision E187 of 2023) [2023] KEHC 26952 (KLR) (14 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26952 (KLR)

Republic of Kenya

In the High Court at Mombasa

Criminal Revision E187 of 2023

A. Ong’injo, J

December 14, 2023

Between

Republic

Applicant

and

Alfred Mumbo Bangura

Respondent

Ruling

Application 1. The application dated 2nd October 2023 was brought under Articles 165 of the Constitution of Kenya 2010, Sections 362 of the Criminal Procedure Code and all other enabling provisions of the law seeking for cancellation of the Respondent’s bond issued in Shanzu Senior Principal Magistrate’s Court Criminal Case No. E313 of 2023 in a ruling delivered on 13th September 2023.

2. The application is premised on grounds that the Respondent has been charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code and being unlawfully present in Kenya contrary to Section 53 (i)(j) as read with Section 53 (2) of the Kenya Citizenship and Immigration Act No. 12 of 2011.

3. That on 17th April 2023, the applicant filed an affidavit to oppose bond that was sworn by one CPL Abdulahi Hussein but after hearing submissions of both parties, the trial court delivered its ruling on 27th April 2023 and granted the Respondent bond of Kshs. 1,000,000 with one Kenyan Surety of similar amount.

4. That on 12th May 2023, the applicant filed an application praying that the Respondent’s bond be cancelled on the ground that the Respondent did not have a valid immigration status and that he did not have a valid passport. That a report had been made vide OB No. 49/02/05/2023 at Central Police Station that the complainant was being threatened by unknown persons believed to be the Respondent’s associates.

5. That the trial court delivered its ruling on 13th September 2023 and reinstated the respondent’s bond terms stating that no sufficient grounds had been placed before it to warrant a review. That the applicant in the trial court provided two letters from the SCCIO of Ruiru Police Station and SCCIO of Kiambu Police Station confirming that they were not in possession of the Respondent’s passport as was alleged by the Respondent through his advocate. That the applicant further provided an OB extract that indicates the report made by the complainant of being threatened to withdraw the criminal case against the Respondent or she will lose her life.

6. The applicant seeks that the High Court exercises its discretion as provided for under Section 362 of the Criminal Procedure Code and orders for cancellation of the Respondent’s bond.

Respondent’s Submissions 7. The Respondent submitted that the applicant’s application does not meet the standards of what is envisaged in Section 362 of the CPC that the application does not suggest anywhere that there is an illegality or incorrectness or impropriety. That instead the application is purely based on the merit of the decision by the learned magistrate.

8. The Respondent argues that the application seeks that this court interferes with the discretion of the trial court without showing that the discretion was exercised irregularly. That the application is not disclosing that in fact the Respondent was on bond and was only in custody because the surety had withdrawn and that the application is not showing if the applicant had breached any terms of the bond.

9. The Respondent therefore prayed that the applicant’s application be dismissed.

Analysis and Determination 10. The power of the High Court in revising orders for subordinate court and tribunal is provided under Article 165 (6) and (7) of the Constitution as well as Section 362 and 364 of the Criminal Procedure Code where the High Court may call for records of the subordinate courts or other inferior tribunals and examine its legality, correctness, propriety or regularity. The purpose of revisional jurisdiction of the High Court is to enable the High Court in manifest cases to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial should be proceeded with in the subordinate court. (See Joseph Mbuvi Nduvi v Republic (2019) eKLR).

11. In this matter, the trial magistrate considered the objection by the prosecution and found that there were no tenable or sufficient grounds or reasons that were placed before him that would warrant review of orders of 27th April 2023 granting bond to the Respondent. The trial magistrate in fact alluded to the fact that no appeal had been preferred to challenge the order granting the Respondent bond. The order made by the trial magistrate was an exercise of judicial discretion which can only be challenged by way of an appeal and not a revision application.

12. Although the applicant’s brought this application, there were no submissions filed to prove that there were any incorrect, irregular or illegal orders that were made by the court to require intervention for purposes of revision under Section 362 of the Criminal Procedure Code. It has also not been shown that there was any impropriety on the part of the trial magistrate in granting bond terms to the Respondent.

13. The application for revision is therefore dismissed.

DATED, SIGNED AND DELIVERED IN OPEN COURT/ONLINE THROUGH MS TEAMS,THIS 14TH DAY OF DECEMBER 2023HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of: -No appearance for Mr. Ngiri for the RepublicNo appearance for Mr. Magolo Advocate for the RespondentNo appearance for the RespondentCourt:Copy of ruling to be served upon the Applicant’s and Respondent’s counsel.HON. LADY JUSTICE A. ONG’INJOJUDGE