[2013] KEHC 3270 (KLR)
The High Court found that the accused had provided a valid and documented explanation for his absence from court on the scheduled hearing date, namely that he was in police custody at the time. The surety also appeared in person and affirmed his continued willingness to stand surety for the accused. The trial...
Source-derived case information.
- Citation
- [2013] KEHC 3270 (KLR)
- Parties
- Respondent: Republic; Appellant: Moses Rimui Njoroge
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Revision Case 5 of 2013
- Procedural Posture
- Criminal Revision / Application for Revision of Surety Cancellation Order
- Outcome
- Order of the Chief Magistrate cancelling the surety is reversed; surety reinstated; accused to be released on original bond terms.
- Judges
- J Wakiaga
- Legal Topics
- Bail and Bond, Surety Liability, Revision Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Moses Rimui Njoroge
Appellant
Procedural Posture
Criminal Revision / Application for Revision of Surety Cancellation Order
Legal Issues
- 1 Whether the trial court erred in cancelling the surety for the accused despite explanation for non-attendance.
- 2 Whether the accused and surety provided sufficient justification for their absence on the hearing date.
Ratio Decidendi
The High Court found that the accused had provided a valid and documented explanation for his absence from court on the scheduled hearing date, namely that he was in police custody at the time. The surety also appeared in person and affirmed his continued willingness to stand surety for the accused. The trial court's decision to cancel the surety was therefore unjustified, as both the accused and surety had fulfilled their obligations to the extent possible under the circumstances. The High Court exercised its revisionary jurisdiction to reverse the cancellation order and reinstate the surety, holding that the accused should be released on the original bond terms.
Court Disposition
Order of the Chief Magistrate cancelling the surety is reversed; surety reinstated; accused to be released on original bond terms.
Orders
- The order of the Chief Magistrate issued on 23rd May 2013 cancelling the surety is reversed.
- The surety for the accused is hereby reinstated.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nyeri
Revision Case 5 of 2013 [if gte mso 9]><xml>
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REPUBLIC…………………………………….…………..PROSECUTOR
Versus
MOSES RIMUI NJOROGE …………………....…………….ACCUSED
REVISION
1. This matter has been referred to this court for revision under sections 364(1)b(2) and section 365 of the Criminal Procedure Code in respect of the decision by the Chief Magistrate to cancel the surety of the accused in CMC criminal Case No. 1050/12.
2. It is stated that the circumstances leading to the cancellation of the said surety are that the accused was set for hearing of his case on the 30th day of April 2013 but failed to attend court nor did his surety one JORAM NJOROGE and since no explanation was given the court issued a warrant of arrest.
3. It is stated that the accused had been arrested on 29th April 2013 and held up at Juja police station. He was subsequently arraigned at Thika Chief Magistrate's court case No. 1212 of 2013 on 2nd May 2013 and managed to raise the bond terms on 7th day of May 2013.
4. The surety and the accused came to court on 14th May 2013 when the court was requested to lift the warrant of arrest instead the court canceled the surety and placed the accused in custody.
5. I have looked at the proceedings before the Chief Magistrate and note that the accused was able to explain his absence from court on day when the matter was supposed to proceed for hearing supported by documents evidence which have not been challenged.
6. I have also noted that the surety appeared before court in person and has also sworn an affidavit in which he confirms that he is still willing to stand surety for the accused.
7. I note that it is the duty of an accused person to attend court and the surety is only called upon to ensure his attendance and since the parties herein have explained failure of the accused to attend court on that date I am of the considered view that the trial court should not have canceled the surety.
8. I therefore reverse the order of the Chief Magistrate issued on 23rd May 2013 canceling the surety and hereby reinstate the same.
9. The accused should therefore be released from custody upon the bond terms earlier given.
Dated and issued at Nyeri this 24th day of May 2013.
J. WAKIAGA
JUDGE
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