[2022] KEHC 461 (KLR)

Rerimoi v Republic (Miscellaneous Criminal Revision E102 of 2022) [2022] KEHC 461 (KLR) (18 May 2022) (Ruling)

Neutral citation: [2022] KEHC 461 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Revision E102 of 2022

JM Mativo, J

May 18, 2022

Between

Wesley Rerimoi

Applicant

and

Republic

Respondent

Ruling

1. The applicant moved this court vide a letter dated 26th April 2022 received in this court on 18th May 2022 seeking to be released on bail/cash bond in CMCR No e2148 of 2021. He says the prosecution objected to his application and the court refuses him bail. Be claims that he has attended court on the following dates 21/10/2021, 22/20/2021, 25/10/2021, 26/10/2021, 27/10/2021, 15/11/2021, 24/01/2022, 07/02/2022, 21/02/2022, 07/03/2022, 22/03/2022, 05/04/2022, 20/04/2022.

2. He pleads that bail is his constitutional right hence he has not been accorded justice. He wrote to the court on 11th March 2022 pleading for bail, but all what is in the file is a hand written note referring him to the ruling refusing him bail. I will comment on this note later.

3. Section 362 of the Criminal Procedure Code 1 vests this court with power to call for the record or proceedings of the subordinate courts and satisfy itself as to the legality or propriety of any order, judgement or proceedings passed. In exercising the said powers, this court enjoys the same powers as when hearing an appeal. Also, this court may hear and determine a revision without hearing the parties except when the orders issued may affect the accused person, then he must be heard. Consistent with the above provision, I have entertained this revision without hearing any of the parties.1Cap 75, Laws of Kenya.

4. For starters, it is important I explain the nature of this court’s supervisory jurisdiction. Supervisory jurisdiction refers to the power of superior courts of general superintendence over all subordinate courts. Through supervisory jurisdiction, superior courts aim to keep subordinate courts within their prescribed sphere, and prevent usurpation. In order to exercise such control, the power is conferred on superior courts to issue the necessary and appropriate writs.22Gallagher v. Gallagher, 212 So. 2d 281, 283 (La. Ct. App. 1968).

5. Parliament in its wisdom provided for a mechanism of examining the propriety or legality of orders/judgments/proceedings issued by subordinate courts in criminal cases as a safeguard to ensure that criminal processes are undertaken fairly and in a manner that protects the rights of accused persons.

6. This power of superintendence conferred by Article 165 (6) of the Constitution, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. v Sukumar Mukherjee3 is to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with an unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes. As the Supreme Court of India stated unless there is a grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 165 (6) of the Constitution to interfere.43AIR 1951 Cal. 193. 4See D. N. Banerji v. P. R. Mukherjee1953 SC 58.

7. Courts derive their power from the Constitution and the statutes that regulate them. The jurisdiction of each hierarchy of the courts is limited within the boundaries of the written law apart from the High Court which is sometimes said to have inherent jurisdiction to do things not specifically provided for. Historically, the high court, in addition to the powers it enjoyed in terms of statute, has always had additional powers to regulate its own process in the interests of justice. This was described as an exercise of its inherent jurisdiction.

8. Useful guidance can be obtained from Freedman C J M, citing I H Jacob Current Legal Problems who adopted the following definition of ‘inherent jurisdiction’5though writing in the context of civil cases: -5Montreal Trust Co v Churchill Forrest Industries (Manitoba) Ltd 1972 21 DLR (3d) 75 at 81 quoting I H Jacob, Current Legal Problems (1970) p 51. “. . . the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of the law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them…”

9. Jerold Taitz, in his book, The Inherent Jurisdiction of the Supreme Court6 succinctly describes the inherent jurisdiction of the high court as follows: -6Jerold Taitz, University of Cape Town, Juta, 1985. “. . .This latter jurisdiction should be seen as those (unwritten) powers, ancillary to its common law and statutory powers, without which the court would be unable to act in accordance with justice and good reason. The inherent powers of the court are quite separate and distinct from its common law and its statutory powers, eg in the exercise of its inherent jurisdiction the Court may regulate its own procedure independently of the Rules of Court.”

10. I.H. Jacob in "The Inherent Jurisdiction of the Court' 7quoted by Jerold Taitz (supra) states:7(1970) 23 Current Legal Problems 23 at pp. 51-52. “[it] exists as a separate and independent basis of jurisdiction, apart from statute or Rules of Court ... It stands upon its own foundation, and the basis for its exercise is ... to prevent oppression or injustice in the process of litigation and to enable the court to control and regulate its own proceedings ... [it] is a necessary part of the armoury of the courts to enable them to administer justice according to law. The inherent jurisdiction of the court is a virile and viable doctrine which in the very nature of things is bound to be claimed by the superior courts of law as an indispensable adjunct to all their other powers ... it operates as a valuable weapon in the hands of the court to prevent any clogging or obstruction of the stream of justice."

11. I have in several decisions stated that pre-trial detention engages (and may well infringe) several distinct fundamental rights enshrined in international law and our constitution. Pre-trial detention may contravene the right to liberty, which incorporates a right not to be detained arbitrarily. Pre-trial detention conflicts with the right to be presumed innocent until proven guilty. The problem doesn’t lie with the law as such, but its interpretation. There is enough in the law to protect against wrongful use of pre-trial detention, if it were being interpreted correctly and applied in a way that guarantees rights. The law demands a concrete ground to support pre-trial detention.

12. The right to personal liberty and the presumption of innocence require that strict criteria must be met before someone can be detained prior to being tried by a court and convicted. Greater effort must be placed on ensuring that pretrial detention is used as an exceptional measure, in accordance with international law and our constitutional edicts. Loss of liberty must be sufficiently justified. That explains why the Constitution requires in uncompromising terms that an arrested person be produced in court within 24 hours and once charged in court he is entitled to be released on bail unless there are compelling reasons. Article 49 (1) of the Constitution provides that an arrested person has the right-To be released on bond or bail on reasonable conditions, pending a charge or trial, unless there are compelling reasons.

13. Another vital requirement is that the judicial supervision should occur "promptly" after the initial deprivation of liberty. This means that under normal circumstances the judicial supervision has to take place to curb such constitutional infractions promptly. In light of the presumption of innocence, alternatives to pre-trial detention need to be considered.” In this regard, the Bail and Bond Policy Guidelines8in obedience to the constitutional dictate in Article 49 (1) (h) provide that courts have power under the Constitution and the Criminal Procedure Code to Review bail terms and Conditions. Paragraph 4. 36 of the Bail and Bond Policy Guidelines provides that: -8March 2015, National Council on the Administration of Justice.“Courts shall inform accused persons of their rights to apply for review of bail decisions and conditions. Bail decisions and conditions should be reviewed on a regular basis, as the circumstances of the accused person and the case change."

14. The lower courts record shows that the applicant wrote to the trial court on 11th March 2022 pleading for his bail re-considered. All that was done is a note reminding him of the earlier ruling refusing him bail. The proper thing for the court to do was to reconsider the bail application instead of referring the applicant to the earlier ruling. As was held in Republic v Diana Suleiman Said & another9 the court does not become functus officio after granting or refusing bail. The court can subsequently review or cancel bail if circumstances so demand. The Magistrate seized of the matter at the time the application for review of bail terms comes up has jurisdiction to review or vary bail term. This does not amount to sitting as an appellate court.9Misc Cr App No. 55 of 2014, Mombasa

15. Addressing the same issue the Bombay High Court in the case ofSwan KherGulsan and others v Assistant Collector of Customs10stated: -10{1993} (3} BomCR 546, {1993} cRIMj 3569“… it is open to the accused to point out to the court and request the court for a review or reconsideration...The issue at heart is whether the reconsideration ....of bail is something the trial court can review...The immediate impression is that this would amount to review of the courts own order….An application for reconsideration ....is basically on part a fresh application for bail. .., it is not a review of one’s order that is being done because with passage of time at least some of the factors have changed and the accused being in custody, it is at least a de novo consideration…..”(Emphasis added)

16. The reasons proffered by the prosecution in the lower court which informed the courts decision to decline the bail application the accused person is a flight risk, that he deserted his job and has been on the run, that upon being released on cash bail at the police station he changed his phone and fled, that he has no known address and that it will be difficult to trace him.

17. Granting bail entails the striking of a balance of proportionality in considering the rights of the applicant who is presumed innocent at this point on the one hand, and the public interest on the other. It is the duty of the court to uphold the rights of persons charged with criminal offences. (See Gerald Macharia Githuka v Republic.11). As was held in Republic v Joseph Thomas Olang12 it is important that the court determining an application for bail conducts a delicate balancing act, so as to get the reasonable conditions for the particular case at hand. For example, where bail is refused, then in all fairness, the court should as a matter of priority hear the matter. I note from the lower courts file that the accused was first arraigned in court on 21st October 2021. The hearing is scheduled for September 9th 2022. By the time the hearing commences, he will have been in custody for about onr year and at this rate the risk of being incarcerated longer is real. Sadly, from my supervisory visits to prisons, I witnessed worrying trend which exposed the unfairness and decay of our criminal justice system with pre-trial detentions lasting an average of 4 years largely if not wholly attributed to court delays. Trial delay still remains the bane of our justice system. This must change. There is no reason why a case such as the one facing the applicant in the lower court should take so long before it commences, nor is there a justifiable reason to consign a person to jail before conviction for such a long period. I am persuaded that this is a proper and fit case for this court to review the orders declining bail.11Criminal Appeal No. 119 of 200412[2014] eKLR

18. Accordingly, I order that the applicant Wesley Rerimoi be released on a free bond plus one surety of Kshs.50,000/=.

SIGNED, DATED AND DELIVERED AND DATED AT MOMBASA THIS 18THDAY OF MAY 2022. JOHN M. MATIVOJUDGE