[2012] KEHC 804 (KLR)
The court held that the Principal Magistrate acted without jurisdiction in varying the bail order previously made by the Chief Magistrate. The proper procedure for challenging the denial of bail was to appeal to the High Court, not to seek a review before a magistrate of concurrent jurisdiction. The order granting...
Source-derived case information.
- Citation
- [2012] KEHC 804 (KLR)
- Parties
- Applicant: Republic; Respondent: Lawrence Gitau Gathuka; Respondent: Rose Chepngeno Rono
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 180 of 2012
- Procedural Posture
- Criminal Revision / Ruling on Application for Revision of Bail Order
- Outcome
- Order granting bail by Principal Magistrate reversed; previous order denying bail reinstated.
- Judges
- LN Mutende
- Legal Topics
- Bail and Bond, Jurisdiction of Magistrates, Revisionary Powers, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Lawrence Gitau Gathuka
Respondent
Rose Chepngeno Rono
Respondent
Procedural Posture
Criminal Revision / Ruling on Application for Revision of Bail Order
Legal Issues
- 1 Whether a Principal Magistrate has jurisdiction to vary or reverse a bail order previously made by a Chief Magistrate.
- 2 Whether the order granting bail to the accused persons was illegal and should be reversed.
Ratio Decidendi
The court held that the Principal Magistrate acted without jurisdiction in varying the bail order previously made by the Chief Magistrate. The proper procedure for challenging the denial of bail was to appeal to the High Court, not to seek a review before a magistrate of concurrent jurisdiction. The order granting bail was therefore illegal and was reversed, reinstating the earlier order denying bail. The court exercised its revisionary powers under Section 364 of the Criminal Procedure Code to correct the illegality and ensure proper administration of justice.
Court Disposition
Order granting bail by Principal Magistrate reversed; previous order denying bail reinstated.
Orders
- The order made by the Principal Magistrate granting bail is reversed.
- The order dated 6th December, 2011 by Hon. S.N. Andriessen denying bail shall subsist.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
High Court at Kericho
Criminal Revision 180 of 2012 [if gte mso 9]><xml>
800x600
</xml><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-GB X-NONE X-NONE
MicrosoftInternetExplorer4
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
REPUBLIC ………………………………………………APPLICANT
VERSUS
LAWRENCE GITAU GATHUKA ……...…………1ST RESPONDENT
ROSE CHEPNGENO RONO ……………………2ND RESPONDENT
REVISION
This case has been referred to me pursuant to the provisions of Section 363 of the Criminal Procedure Code. The Hon. V.W. Wandera, Chief Magistrate having perused the record of proceedings therein was of the opinion that an order made by Hon. J.R. Ndururi, Principal Magistrate was illegal hence sought to have it revised.
I have perused the court record. The accused, Lawrence Gitau Gathuka was charged in Criminal Case No. 829/2011 with an offence of robbery with violence contrary to Section 296(2) of the Penal Code.
An application was made to have him released on bond. In her considered ruling Hon. Ongudi, Chief Magistrate (As she then was) declined to grant the order sought. She concluded in her ruling by stating as follows:-
“… I therefore decline to grant the orders sought by the defence for bail/bond. Accused is at liberty to move to the High Court if dissatisfied”.
The case was later consolidated with another one whereby the accused was jointly charged with one Rose Chepngeno Rono hence this proceedings.
On the 6th December, 2011, an application was made to have the accuseds released on bond. Hon. S. N. Andriessen the presiding magistrate then, having perused Criminal Case No. 829/11 declined to grant bail.
When the matter was placed before Hon. J.N. Ndururi, Principal Magistrate the application for bail was renewed. The court considered the application and reviewed the order by granting the accuseds bond.
In denying the applicant bail Hon. Ongudi, Chief Magistrate (As she then was) gave reasons that she considered compelling enough to have the accuseds’ freedom curtailed. She found that:-
(1)The accused Lawrence Gitau Gathuka was facing another case of robbery with violence before the Senior Principal Magistrate’s Court, Narok.
(2)The accuseds security was at stake.
(3)The accused being a police officer was amenable to being in possession of a gun.
The order of the learned Magistrate was appealable to the High Court. A Principal Magistrate could not purport to vary such an order as he is not seized of appellate jurisdiction.
For this reason the order made by the learned Magistrate is illegal. I therefore exercise my discretion under Section 364 of the Criminal Procedure Code by reversing it. The order dated 6th December, 2011 by Hon. S.N. Andriessen shall subsist.
It is so ordered.
LILIAN N. MUTENDE
JUDGE
22/11/12