[2017] KEHC 3261 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAJIADO

CRIMINAL CASE NO. 10 OF 2017

REPUBLIC.....................................................PROSECUTION

Versus

LUCY NYOKABI MWAURA..................................ACCUSED

(FURTHER RULING ON REVIEW ON BOND APPLICATION)

RULING

The accused person was indicted with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. She pleaded not guilty to the charge and particulars constituting the offence.

Ms. Rashid, learned counsel for the accused invoked the jurisdiction of this court pursuant to the provisions of Article 49 (h) of the Constitution to have her released on bond pending trial. This court decided on the questions of law and enunciated the principles applicable to this particular application. I was not persuaded to accept the application to admit the accused to bail and the reasons in support of my decision are clearly stated in the ruling dated 19/7/2017.

In a matter peculiar and rather disturbing procedure, learned counsel before even receiving the certified copy of my ruling to internalize the basis of the decision was again at in the following day. Subsequently Ms. Rashid made her second attempt for the same relief as the previous one which was dismissed with the following order:

“These facts to me are compelling reasons notwithstanding reasons under Article 49 (h) to decline release of the accused person on bond.”

In the second attempt for obtaining the same relief the same arguments presented in the earlier application featured prominently. Mr. Akula the senior prosecution counsel for the state vehemently opposed the application for review on the basis that nothing has changed since the initial order.

I have carefully considered the application for review and the principles upon which this court can exercise discretion. I am persuaded by an Indian case of Saleh Muhammad v The State & Ano. [1983] SCMR 341 where the court stated interalia on an application for review:

“It will be observed that the request for bail was once rejected on merits by the first order of the high court, dated 14/10/1980 and in our case on 19/7/2017 and normally, unless the repeated request was made on grounds other than those available at the time of the first application, no fresh application on merits could be entertained by the court.”

The legal principle in this case is that the application for review shall lie only on discovery of new mater or evidence which did not exist at time the initial application was made by the learned counsel. From the submissions and arguments advanced before me there are no new grounds taken up by learned counsel to reconsider the dismissal of the application on merits.

The superior courts in our jurisdiction have had occasion to comment on exercise of discretion to review an order or judgement. This is more pronounced in civil cases. I find the principles in the following cited cases applicable to the instant application. In the case of National Bank of Kenya Ltd v Ndungu Njau CA 211 of 1996 the Court of Appeal said:

“A review may be granted whenever the court considers it necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground of appeal.”

This passage though borrowed from the realm of civil justice adjudication in essence it fits the principles to be applied in determination of this application. I have considered all these matters urged and submitted by learned counsel in this second attempt on the same issue and grounds in support. In my view the applicant counsel has not expressed herself in order to motivate this court that in regard to the interest of justice an application for review should be entertained. The application for review of my ruling dated 19/7/2017 is hereby dismissed.

Having found so against the applicant, the orders herein made not relevant to this case:

(1) That the applicant’s remedy to review the application on bond is not closed with finality.

(2) That the perusal of the affidavit highlighted the issue of key witnesses who were acquaintance with the accused and likely to interfere with the case be given priority at the commencement of the trial.

(3) That the case be listed for trial on a priority basis with the defence counsel invite to take an earlier date for pretrial conference.

It is so ordered.

Dated, delivered, signed in open court at Kajiado on 18/9/2017.

……………….

R. NYAKUNDI

JUDGE

In the presence of:

Mr. Naikuni for Ms. Rashid for the applicant

Mr. Akula for the DPP

Mr. Court Assistant

Accused present