[2023] KEHC 25417 (KLR)

Republic v Ltupuken (Criminal Case 88 of 2018) [2023] KEHC 25417 (KLR) (14 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25417 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Case 88 of 2018

EM Muriithi, J

November 14, 2023

Between

Republic

Prosecution

and

Ledupe Ltupuken

Accused

Ruling

Introduction 1. By Information dated 3/10/2018, the accused was charged with the murder contrary to section 203 as read with 204 of the Penal Code. There were attempt settlement or withdrawal of eh charges via a plea bargain which eventually failed as recorded in the proceedings of 5/7/2019 when Mr. Mutuma Counsel for the Accused informed the Court that “my client has declined to admit the plea bargain” and the matter was set for mention on 19/11/2019. In the meantime, the accused was released on bail upon the terms previously set by the court of “a personal bond Ksh.300,000/- with a surety of a similar amount” granted on 17/12/2018.

2. The proceedings for approval of surety herein were had before the Deputy Registrar of the Court Hon. E. Tsimonjero, DR on 8/10/2019, in elaborate hearing which is set out in full below:“8/10/2019Before E. Tsimonjero, DRC/A SusanSurety PresentFemale Adult Sworn And States In Kiswahili:My name is Serah Nkirote Gituma ID No. 2487436 resident of Chugu. I am employed by Meru County Government as a senior clearing officer. I want to stand surety for Ledupe Ltupuken.He is a family friend. I want to use my payslip for he month of August 2019. My net pay is Ksh.34,000/-. I have shares worth Ksh.150,000/-. The accused was given bond of Ksh.300,000/-. I know it is my duty to ensure that the accused attends court. If he defaults I pay the bond sum or be imprisoned. I know the sister and other family members. I am ready to stand surety.Court:The surety is approved. The payslip for the month of August in eh name ofSerah Nkirote Gitumabe deposited as security and kept in safe custody pending the finalization of the matter.”

3. The accused absconded immediately upon release on bond and a warrant of arrest was issued against both the accused and the surety since 19/11/2019.

4. The Surety failed to attend upon summons first issued by the court on , and upon investigations revealing that the details of the surety given in the Surety documents were wrong in that the persons standing surety never worked at the County Government as shown on the payslips relied on at the surety approval hearing, the person before the court was arrested and presented to court as the surety who stood surety for the accused who had failed to secure the attendance of the accused for his trial.

5. The person named in the surety documents (hereinafter referred as the applicant) has request the Court to determine that her Identity Card was fraudulent used in surety bond to stand surety for the accused who she does not even know, and the said applicant Serah Nkirote Gituma has by an affidavit sworn on 18/10/2023 indicated that she is the wrong person before the court as she has never stood surety for the accused in this case:“I, Serah Nkirote Gituma a female adult of sound mind working for gain and resident in Imenti North Sub County - Machakos County in the Republic of Kenya of Post Office Box number 2375 - 60200, Meru do hereby make oath and swear as follows:1. That I am a Kenyan Citizen by birth and holder of national identity card number 2487436. 2.That in the year 2018 I either lost or misplaced my original identity card.3. That I reported the loss and replaced the said identity card in the same year.4. That oi128. 9.2023 I was arrested buy the police and presented to court on allegations of having been a surety to an accused person who had failed to abide by court bond terms.5. That upon inquiry I learnt that the subject surety is an employee of the county Government and had presented her pays lip. To the contrary I am employed as a casual in a food kiosk in Meru town and do not earn a pays lip.6. That I make this affidavit to confirm that I have never been an employee of the County Government or any other entity whatsoever and that I have never offered to stand as surety for any person in my life.7. That I believe the subject con artists used my identity card when it was lost to secure a bond for the accused who I do not even know.”

Submissions 6. The Court heard the Counsel for the Prosecution, the accused and the applicant named as surety herself in proceedings of 6/11/2023 set out below and ruling was reserved:“6/11/2023Mr. Masila for DPPI have seen the Affidavit by Serah Nkirote of 18/18/2023 in response to the documentation which we got from the court file. We did execute the warrant of arrest based on the documents on the file and the surety did come to court and as such, I make a prayer for a ruling on the issue of this matter. The documents were not manufactured by the prosecution.Mr. J. Mutuma for the AccusedWe don not oppose the court delivering a ruling in the matter. We only pray that the Prosecution take a decision on entering a Nolle Prosequi pending arrest of the accused.Ms. Gituma, Applicant/ SuretyI have been brought up in Meru County ad I have never been employed by Meru County. I was working as a casual labourer. I am now engaged at a café. I have never been employed in a formal employment. I only got to know about this matter when Iwas arrested and I was held in custody and produced in court on 1/10/2023. My Identity Card got lost. I never gave my photographs to anyone. They probably used the picture in the Identity Card.I have no explanation as to why my passport size photograph is used. I would also be interested to know how they used my photographs. The passport size photograph is mine. I do not know how the passport size photograph got to the file. They probably got lost. I do not know.Mr. Masila in replyI urge that the approval of surety was an administrative duty which the court and the DPP takes seriously. Before approval certain prerequisites are required. The photographs are original and copy of the original of Identity Card and the documents that the surety will use to stand surety for the accused.In this matter, it is a case for Mwamba police station. The accused absconded for quite some time and a warrant of arrest was issued. Summons to the surety were issued. The Investigating Officer came all the way for the documents to investigate the matter because on the documents were in the court file. The Investigating Officer proceeded to the Meru County Government was informed that the surety had never worked at the County Government of Meru.I applied for warrant of arrest against surety and the same was executed by the Investigating Officer. The Investigating officer tracked the surety by the number which was provided and is on the surety documents. That is to show how the Investigating officer tracked the surety and subsequently an arrest was effected. The surety losing her Identity Card is not mate3rial. The Identity Card copy is in the court fil. Additionally, her photographs are also in the court file. The Deputy Registrar and the prosecutor cannot have approved a surety who is not the surety in Court because they scrutinise a proposed surety before the same is approved. The Investigating officer got the documents from the court file. They are the surety’s documents. Everything matches the surety who is in court. I urge that the surety is the right surety and I pray that the court should confirm the same.”

The law 7. Section 131 of the Criminal Procedure Code provides for the procedure for dealing with cases of accused absconding and forfeiture of surety bond as follows:“131. Forfeiture of recognizance1. Whenever it is proved to the satisfaction of a court by which a recognizance under this Code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.2. If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.3. A warrant may be executed within the local limits of the jurisdiction of the court which issued it; and it shall authorize the attachment and sale of the movable property belonging to the person without those limits, when endorsed by a magistrate within the local limits of whose jurisdiction the property is found.4. If the penalty is not paid and cannot be recovered by attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term not exceeding six months.5. The court may remit a portion of the penalty mentioned and enforce payment in part only.6. When a person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his recognizance, a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties, and, if the certified copy is so used, the court shall presume that the offence was committed by him unless the contrary is proved.”See this court’s recent decision in Meru HC Criminal Revision E164 of 2022, Abdi Mohamed Diriye and 2 Others v. R. of 9/11/2023.

8. On the surety Bond and Bail Bond dated 8/102019, the person Serah Nkirote Gituma undertook as follows:“I, Serah Nkirote Gituma of Meru County do hereby declare myself surety for the above mentioned Ledupe Ltupuken that he shall attend at High Court at Meru on the 19th November 2019 (or on such day as he may hereafter be required to attend) further to answer to the charge pending against him, and in case of his making default therein, I hereby bind myself to forfeit the sum of Shillings 300,000/-.Dated this 8th day of October 2019. ”

9. The Bond secures the attendance of the accused for his trial and it matures upon default to ensure the attendance of the accused at the relevant Court.

Issue for determination 10. The question before the court is whether in terms of section 131 (1) of the Criminal Procedure Codeforfeiture has been proved. It is common ground that the accused has been under warrant of arrest since and that the surety has not secured his attendance in court for his trial. Forfeiture is, therefore, proved if the court determines that the person before the court is the surety who entered into the recognizance undertaking for the attendance of the accused for his trial, binding herself to pay Ksh.300,000/- in the event of default.

Proof of forfeiture 11. Before invoking the powers of the court under section 131 (1) of the Criminal Procedure Code, the Court must find that there is proof of forfeiture of the amount of bond. The standard of proof here must be lower that the criminal standard of beyond reasonable doubt required for proof of the offence subject of the trial itself. It is the standard of the balance of probability, which requires cogent evidence where serious allegation is made to meet the more probable than not standard. The test of balance of probability was considered by the House of Lords in Re H & R (minors) [1996] AC 563, [1995] UKHL 16, [1996] 2 WLR 8, [1996] 1 All ER 1, where Lord Nicholls of Birkenhead said:“The balance of probability standard means that the court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”

12. The DPP has shown that the applicant Identity Card, phone number and passport size photographs were used in the execution of the surety bond for the accused herein, and indeed that when the Surety in the case was summoned without success, the investigating officer was able to trace the surety using the phone number given in the surety documents in the court file, and the person brought to court upon such investigations is the applicant herein.

13. The applicant, a person named Serah Nkirote Gituma who upon being brought to court by the Investigating Officer using the details and documents presented in the court at the stage of approval of surety and who asserts that she is not the surety in this case, has a burden of proof in terms of section 109 of the Evidence Act to prove her allegation, as follows:“109. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

14. The burden of proof, under the balance of probability standard of proof, of the fact as alleged by the applicant that her Identity card was used by fraudsters to stand surety for the accused and that it is not her who execute the bond documents lies on the applicant.

15. The applicant does not deny the Identity Card to be hers, she only alleges it to have been lost and suggest it could have been used by“con artists used my identity card when it was lost to secure a bond for the accused who I do not even know”. She could not however, explain how her passport size photographs (which she acknowledge to be hers) found their way into the court file as the photographs of the approved surety. As pointed by the Counsel for the DPP, the Investigating officer was able to trace through the mobile phone number given on the surety documents filed in court. No explanation was given by the applicant as to how her mobile phone number was given on the surety documents.

16. If the applicant explained the use of her Identity Card at the time it had been lost, the presence of her passport size photographs and her mobile phone number were unexplained, and the court finds it more probable that not that the applicant is the surety who bound herself to secure the attendance of the accused for his trial in court. In the event of the accused’s abscondment, and therefore the default of the surety bond, the Surety Serah Nkirote Gituma has forfeited the sum of Ksh.300,000/-.

17. In terms of section 131 (1) of theCriminal Procedure Code, it is proved “to the satisfaction of that court, that the recognizance has been forfeited” upon the grounds of proof recorded above. The Court shall now call upon the person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.

18. Having found the applicant herein to be the Surety Serah Nkirote Gituma who executed the bond for the accused herein and who has therefore forfeited Ksh.300,000/-, the court will now require the said applicant Surety to comply with the provisions of section 131 of theCriminal Procedure Code by payment of the said sum within reasonable time.

19. It also does appear that the applicant may have committed among others the offences of forgery and uttering under the Penal Code, and the Court shall recommend to the DPP and the Investigating Officer to further investigate the issue and if sufficient evidence be established, mount a prosecution for the said offences against the Surety Serah Nkirote Gituma.

Orders 20. Accordingly, for the reasons set out above, the Court makes the following orders:1. The Court finds that the that the Surety’s recognizance herein in the sum of Ksh.300,000/- for the appearance of the accused before the Court has in the default of attendance of the accused since 19/11/2019 been forfeited.2. The Court now calls upon the applicant Serah Nkirote Gituma as the surety herein to pay the sum of Ksh.300,000/- within the period of thirty (30) days following.3. In default, the Surety Serah Nkirote Gituma shall in terms of section 131 (4) of the Criminal Procedure Code serve imprisonment for six (6) months.4. Mention for directions of 14/12/2023.

Order accordingly.

DATED AND DELIVERED THIS 14TH DAY OF NOVEMBER, 2023. EDWARD M. MURIITHIJUDGEAppearances:Mr. J. Mutuma for the Accused.Surety in person.Mr. Masila for the DPP.