[2022] KEHC 14163 (KLR)

Republic v Wanjiru & 2 others (Revision Case E085 of 2022) [2022] KEHC 14163 (KLR) (19 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14163 (KLR)

Republic of Kenya

In the High Court at Embu

Revision Case E085 of 2022

LM Njuguna, J

October 19, 2022

Between

Republic

Applicant

and

Wincate Gathoni Wanjiru

1st Respondent

Irene Wanjiru Ireri

2nd Respondent

Edith Gaturi Kanambiu

3rd Respondent

Ruling

1. The application dated July 25, 2022 was brought under Article 159(2)(a) and (b) of theConstitution of Kenya, Sections 283, 362 and 364 of the Criminal Procedure Code, Section 3(b) (v) and 9 of the Victim Protection Act No 17 of 2014 and all other enabling provisions of law.

2. The Applicant seeks for stay of proceedings in Criminal Case No E147 of 2022 Republic v Wincate Gathoni Wanjiru & 2 Others pending the hearing and determination of this application and that the High Court be pleased to call for the record for purposes of satisfying itself on the correctness, legality and/or propriety of the orders of Hon Nyakweba (SPM) made on February 14, 2022. That this court issues orders that it deems fit.

3. The application is premised on the grounds on its face and its supported by an affidavit sworn by Diana irungu on behalf of the applicant and wherein it was deposed that the respondents were arraigned in court for plea taking for the offence of robbery with violence on diverse dates between February 14, 2022 and May 15, 2022. That they pleaded not guilty and despite the applicant having filed affidavit of compelling reasons to substantiate the objection to the bail application, the trial court did not judiciously exercise its discretion but proceeded to release the respondents on a cash bail of Kshs 50,000/= or a bond of Kshs 100,000/=. It was the applicant’s case that the set bond terms were too lenient in the circumstances, considering the seriousness of the offence of robbery with violence.

4. The respondents opposed the application herein by filing a replying affidavit sworn on September 2, 2022. It was deposed that the bond/bail terms were not lenient as alleged by the applicant, in that, the same are proportionate to the indictment against the respondents in the case herein. That the insistence by the applicant to vigorously pursue excessive bail/bond terms for the respondents is unconstitutional and further, nothing was presented before the court by the investigating officer to prove that the respondents were interfering with the witnesses or any compelling reason to warrant the review of the bail/bond terms issued by the trial court. It was their case that the essential conditions of bail/bond is for the accused persons to be released from custody and therefore, the applicant did not prove that the respondents breached any of the bail/bond terms.

5. That the accused persons are presumed innocent till the contrary is proved and thus the bail/bond terms should not be used as penal sanction to punish the accused persons and deprive them liberty until judgment or conviction.

6. The court gave directions on filing of submissions which directions were complied with.

7. The applicant submitted that although the respondents’ right to bail is enshrined in Article 49 of theConstitution, the same is not absolute. That the applicant’s compelling reasons to review the bond terms were duly stated in the affidavit sworn by the investigating officer, NPS No xxxx IP Sarah Guchu. That the reasons for review of the terms are that the 1st respondent previously was charged with the offence of assault causing actual bodily harm in MCCR E473 of 2021 in Wang’uru Law Courts and a warrant had been issued against her; the 2nd respondent was charged with the offence of being in possession of narcotic drugs contrary to section 3(1) as read with 3(2) in MCCR E038 of 2020 in Embu Law Courts where she was found guilty and sentenced accordingly; and the 3rd respondent had begun interfering with the witnesses by dissuading them to testify in court in MCCR E 147 of 2022. Reliance was placed on the case of Republic v Lucy Njeri Waweru [2013] eKLR.

8. On the other hand, the 1st and 2nd respondents submitted that the guiding principle on the High Court when exercising its revisionary jurisdiction is that the lower court must be found to have exercised its discretion ultravires in reference to the law or failed to exercise a discretion vested in it by a statute or in exercising that discretion, it took into account wrong principles, illegal or irregular material. It was submitted that the applicant did not prove or demonstrate how the power invested in the lower court to set and grant bail/bond terms was exercised in error. That the victim was alleged to have been robbed of Kshs 30, 000/= and that the suspects were not even armed with dangerous weapons at the time of the alleged robbery which took place during the day. It was their case that there was no issue of law or fact raised by the prosecution to warrant the interference with the order by the trial court and as such, this court was urged to dismiss the application for lack of merit. Reliance was placed on the case of Republic v Emily Musinda Banda (2021) eKLR.

9. The 3rd respondent submitted that the trial magistrate heard and issued orders on bail and bond terms to the accused persons herein, which in its discretion, weighed and satisfactorily informed itself to be sufficient to warrant such orders as adequate to meet the purpose of bail and bond. Reliance was placed on the case of Edel Sum v Republic [2022] eKLR. That the purpose of bail/bond is to ensure the attendance of court as and when required without fail unless in very exceptional circumstances. It was submitted that in as much as this court is in a truth finding mission to maintain justice, the court is tasked to protect the right to liberty and observe the principle of presumption of innocence till proven guilty. That the 3rd respondent has continued to comply with the terms of her cash bail. Reliance was placed on the case of Kenya Power & Lighting Company Limited v Benzene Holdings Limited t/A Wyco Paints [2016] eKLR. That some of the compelling reasons that guides a court in granting or denying bail/bond include the character and antecedents of the accused person, failure of the accused person to observe bail/bond terms on previous occasions and reasonable conditions that achieve the purpose of bail and bond. Therefore, this court was urged to invoke its inherent powers and find that the terms are sufficient and thus the application herein is destitute of any merit.

10. I have considered the application, the affidavit in support thereof, the submissions made and the authorities relied on.

11. The High Court is vested with Revisionary powers under Article 165 of theConstitution which provides that:-(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

12. Further, it is also well settled under Section 362 of the Criminal Procedure Code that when the Court calls for the record to satisfy itself as to the regularity, propriety and correctness of the proceedings or orders of the subordinate Court; the question as to the regularity or propriety of the proceedings is to be judged objectively in reference to the record that is actually being questioned by an applicant seeking revision.

13. From the foregoing, this court has considered the nature of the charges and materials placed before it. The cardinal consideration in granting bail/bond is to ensure that the accused person avails himself/herself in court whenever he is required. Additionally, the bail/bond terms must not be pegged on the amount stated in the charge sheet alone but on the consideration that the accused person is presumed innocent until proven guilty, and reasonable bail terms where no compelling reasons have been given.

14. In this case, the thrust of the matters falls within the scope of Article 49 (1) (h) of theConstitution;'That an accused person has the right to be released on bond or bail on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.'

15. Further, this court agrees with the respondents’ position on the presumption of their innocence until they are proven guilty. Article 50(2)(a) of theConstitution of Kenya provides that:-'‘Every accused person has the right to a fair trial, which includes the right to be presumed innocent until the contrary is proved.

16. The Bail and Bond Policy Guidelines at page 9 paragraph 3. 1. (d) underpins the right to reasonable Bail and Bond terms as follows:-'d)'Right to Reasonable Bail and Bond Terms:Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.'

17. I now proceed to consider the main arguments advanced by the prosecution in the application herein and it is outright that the basis of their request for a revision is on the leniency of bond/ bail terms granted by the trial Court to the respondents.

18. The prosecution claimed that the bond terms imposed were lenient and not proportionate with the indictment against the respondents. The answer to this plea for a revision under Section 362 of the Criminal Procedure Code is short and simple. The characteristic attributes of impugned order has been scrutinized in the stricto sensu under Article 165 (6) of theConstitution and Section 362 of the Criminal Procedure Code. The order made by the trial Court is governed by the provisions of Article 49 (1) (h) of theConstitution, Sections 123, 123A and 124 of the Criminal Procedure Code as they relate to bail of an accused person.

19. In Criminal Case 25 of 2019 Republic v Mbiti Munguti [2020] eKLR Odunga J Stated that;'‘It is true that the right to bail is not absolute and where there are compelling reasons the said right may be restricted. Nevertheless, since theConstitution expressly confers the said right, it is upon the prosecution to show that there exist compelling reasons to deny an accused person bail. What the compelling reasons are, however, depend on the circumstances of each case and these circumstances are to be considered cumulatively and not in isolation. The mere fact therefore that the offence with which an accused is charged carries a serious sentence is however not necessarily a reason for denial of bail. That ground only becomes a factor if it may be an incentive to the accused to abscond appearing for trial. Therefore, the real question that the court must keep in mind is whether or not the accused will be able to attend the trial. The imposition of terms of the bail if necessary must similarly be for the purposes of ensuring the attendance of the accused at the trial and ought not to be based solely on the sentence that the accused stands to serve if convicted.’.

20. It is contended that the offence with which the accused persons are charged is serious and given that the 1st respondent had previously jumped bail and a warrant issued against her, she is likely to be a flight risk. [ See Criminal Case 14 of 2010 Republic v Ahmed Mohammed Omar & 6 Others [2010] eKLR the court cited the case of Criminal Case No 36 of 2010 Republic v Dorine Aoko Mbogo & Another, where it was stated that; ‘Murder, (like) treason, robbery with violence or attempted robbery with violence are offences which are not only punishable by death, but are by reason of their gravity, (taking away another person’s life, disloyalty to the state of one’s nationality, or grievous assault or injury to another person or his property), are offences which are by their reprehensiveness, not condoned by society in general. It would thus hurt not merely society’s sense of fairness and justice, and more so, the kith and kin of the victim, to see a perpetrator of murder, treason or violent robbery (committed or attempted) walk the street on bond or bail pending his trial. A charge of murder, treason, robbery with violence (committed or attempted) would thus be a compelling reason for not granting an accused person bond or bail.’.

21. In the case of Republic v Joktan Mayende & 4 Others Bungoma High Court Criminal Case No 55 of 2009 the court defined the term 'compelling reasons' as follows:-'The phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by theConstitution.'

22. Further, the court ought to be guided by the Bail and Bond Policy Guidelines which underpins the right to reasonable bail or bond since an accused person is presumed innocent until proven guilty. But, bail or bond terms amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be commensurate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by the facts and circumstances in each case.

23. I am guided by the view of Muriithi J in the case of Kelly Kases Bunjika v Republic [2017] eKLR where he stated that:'The second limb of paragraph (b) of sub-section (1) of section 123A must be read separately and disjunctively from the first part so that the Court considers whether the accused ‘if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody’ Of course, the accused is standing trial for all the alleged offences of robbery with violence, escape from lawful custody and assault, and he is entitled to the presumption of innocence. It is no derogation of his right to that presumption of innocence that he is refused bail; it is merely the exercise of the Court’s mandate to grant bail as constitutionally empowered. It only means that the Court finds a compelling reason within the meaning of the Constitution to refuse bail in the particular case.'

24. Similarly, in the case of Watoro v Republic [1991] KLR 220, it was held thus:'The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. If the presumption of innocence were to be applied in full, there would never be a remand in custody the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence as to whether it would be a good thing to skip or not, and such a possibility is not out of question: it has happened before, and in similar cases…the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction.'

25. Therefore, where a court exercises its discretion to issue bail/bond, it must ensure that the bail or bond terms must not be so low an amount that would make it easy for the accused to be tempted to forfeit the same and abscond court. Whatever the court in its discretion grants, should be commensurate to the offence committed as already stated. [See Hassan Abdulhafedh Zubeidi & Others v R, Nairobi Misc Cr Application No 453 of 2015].

26. In this case, the prosecution’s case is hinged on the fact that the bail/bond terms are very lenient and further, the 1st respondent prior, committed an offence and wherein a warrant of arrest had been issued against her while the 2nd respondent was convicted of the offence she had previously been charged with, thus the same speaks volumes on the characters of the respondents herein compounded with the fact that the 4th accused is still at large.

27. Section 367 of the Criminal Procedure Code, provides as hereunder:When a case is revised by the High Court it shall certify its decision or order to the court by which the sentence or order so revised was recorded or passed, and the court to which the decision or order is so certified shall thereupon make such orders as are conformable to the decision so certified, and, if necessary, the record shall be amended in accordance therewith.

28. Given that in the current constitutional order, robbery with violence is bailable, bail/bond terms in any case has to be looked at from the prism of Article 49(1)(h) of theConstitution; and the key question is whether the accused person will turn up for his trial if released on bond. I therefore find apt the expression of Hon Ibrahim, J (as he then was) in Republic v John Kahindi Karisa & 2 Others [2010] eKLR that;'This Constitutional provision came into force after the promulgation of the New Constitution. As a result of this, the provisions of Section 123 of the Criminal Procedure Code which made the offences of murder, treason and robbery with violence non-bailable offences became obsolete and in effect repealed and inapplicable. In all these cases, the mandatory sentences provided by law is Death, and were referred to as Capital Offences. The said sentences are still applicable. It means now that in case a suspect is charged with any offence under the Penal Code including those that attract the death sentence eg murder, the same is bailable. A murder suspect has a Constitutional right to be released on bail.'

29. In view of the foregoing, I find and hold that the bond/bail terms granted to the respondents by the trial court were not commensurate to the offence that they are charged with. The orders of the trial court issued on the February 14, 2022 are hereby set aside and are substituted with an order granting the respondents bond/bail on the following bond terms:-i.Bond of Kshs 200,000/= and in the alternative, Cash Bail of Kshs 100,000/=.It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 19TH DAY OF OCTOBER, 2022. L. NJUGUNAJUDGE……………………………..…………..for the Applicant………………………………………for the Respondents