[2022] KEHC 1678 (KLR)
The court found that the surety, Tabitha Njambi Njau, failed to discharge her legal duty to ensure the accused attended court as required by the terms of the bond. Despite being given opportunities and being summoned to explain her efforts, she did not provide sufficient evidence or cause to prevent forfeiture. The...
Source-derived case information.
- Citation
- [2022] KEHC 1678 (KLR)
- Parties
- Applicant: Republic; Defendant: Stephen Mbugua Njambi; Surety: Tabitha Njambi Njau
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 41 of 2016
- Procedural Posture
- Criminal Case / Ruling on Forfeiture of Surety Property After Accused Absconded Post Prosecution Case Closure
- Outcome
- Warrant of attachment and sale of surety property issued due to failure to show cause.
- Judges
- MM Kasango
- Legal Topics
- Bail Forfeiture, Surety Liability, Bond Conditions, Absconding Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Stephen Mbugua Njambi
Defendant
Tabitha Njambi Njau
Surety
Procedural Posture
Criminal Case / Ruling on Forfeiture of Surety Property After Accused Absconded Post Prosecution Case Closure
Legal Issues
- 1 Whether the surety has shown sufficient cause to avoid forfeiture of the property pledged for the accused's bail.
- 2 Whether a warrant of attachment and sale should issue against the surety's property due to the accused's failure to attend court.
Ratio Decidendi
The court found that the surety, Tabitha Njambi Njau, failed to discharge her legal duty to ensure the accused attended court as required by the terms of the bond. Despite being given opportunities and being summoned to explain her efforts, she did not provide sufficient evidence or cause to prevent forfeiture. The legal principle is clear that a surety must ensure the accused's attendance, and failure to do so leaves the court with no option but to forfeit the security. Accordingly, the court ordered the issuance of a warrant of attachment and sale of the property used as surety, RUIRU/RUIRUKIU BLOCK 2/174, to recover the bond amount.
Court Disposition
Warrant of attachment and sale of surety property issued due to failure to show cause.
Orders
- A warrant of attachment and sale is issued in respect to the property RUIRU/RUIRUKIU BLOCK 2/174.
- Orders accordingly.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL CASE NO. 41 OF 2016
REPUBLIC............................................................................................PROSECUTOR
-VERSUS-
STEPHEN MBUGUA NJAMBI..................................................................ACCUSED
RULING
1. STEPHEN MBUGUA NJAMBI was charged with the offence of murder. He pleaded not guilty.
2. By a Ruling dated 10th February, 2015, the accused was granted bail on condition he posted his own bond of Kshs.1millin with one surety of similar amount.
3. The accused mother Tabitha Njambi Njau posted surety for the accused by providing her title RUIRU/RUIRUKIU BLOCK 2/174.
4. Trial of the accused commenced and the prosecution closed its case on 21st June, 2017. The accused did not attend court for his trial thereafter.
5. The accused’s mother the surety, has been summoned severally to court to indicate what attempts she was making in tracing the accused. She has been unable to trace the accused.
6. The court requested the surety to show cause why she should not forfeit her property. The surety filed an affidavit dated 18th January, 2022 and this Ruling relates to the request for the surety to show cause.
ANALYSIS AND DETERMINATION
7. The surety has not shown cause why she should not pay the amount she posted for surety. She also has not shown cause why a warrant for attachment of sale of the immovable property of the surety should not issue.
8. The surety bore a duty to ensure the accused attended court when required. This was clearly stated in the case STEPHEN GITHINJI KINYANJUI VS. REPUBLIC (2016) eKLRas follows:-
“In the case ofWILSON KIPROTICH CHEPKAIROR SHOLLEI [2003]eKLR... The court held that the trial magistrate acted correctly in forfeiting the surety stating as follows:
‘In a case where one has offered to stand surety for an accused person it’s the duty of the surety to ensure that the accused person turns up in court every time the court requires him. If the accused does not do it for whatever reason the court has no option but to call upon that surety to forfeit his security …’”
DISPOSITION
9. In the end, there is but only one order to be made which is as follows:-
(a) A warrant of attachment and sale is hereby issued in respect to the property RUIRU/RUIRUKIU BLOCK 2/174.
(b) This matter shall be fixed to be placed before the Deputy Registrar of this Court for settlement of terms and conditions of sale by public auction of that property.
(c) Orders accordingly.
RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF MARCH, 2022.
MARY KASANGO
JUDGE
Coram:
Court Assistant : Mourice
Accused : - STEPHEN MBUGUA NJAMBI - Absent
For accused : - N/A
For DPP : - Mr. Kasyoka
Tabitha Njambi Njau Present
Rulingdelivered virtually.
MARY KASANGO
JUDGE