[2003] KEHC 143 (KLR)
The court found that the applicant, as surety, was properly called upon to forfeit the bond after the accused failed to attend court. The trial magistrate followed the correct procedure under the Criminal Procedure Code by requiring the surety to show cause and by issuing a warrant of arrest when the applicant...
Source-derived case information.
- Citation
- [2003] KEHC 143 (KLR)
- Parties
- Applicant: Salmin Bwanaheri Bwanamkuu; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 12 of 2001
- Procedural Posture
- Criminal Revision / Ruling
- Outcome
- application dismissed
- Legal Topics
- Bail Forfeiture, Surety Liability, Criminal Procedure Code, Recognizance, Bond Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salmin Bwanaheri Bwanamkuu
Applicant
Attorney General
Respondent
Procedural Posture
Criminal Revision / Ruling
Legal Issues
- 1 Whether the applicant surety is liable to forfeit the bond amount after the accused absconded court proceedings.
- 2 Whether the procedure for forfeiture of recognizance was properly followed by the trial court.
- 3 Whether the applicant is entitled to have the forfeiture order reversed or terminated.
Ratio Decidendi
The court found that the applicant, as surety, was properly called upon to forfeit the bond after the accused failed to attend court. The trial magistrate followed the correct procedure under the Criminal Procedure Code by requiring the surety to show cause and by issuing a warrant of arrest when the applicant failed to satisfy the court. The applicant did not demonstrate sufficient cause to avoid forfeiture, nor did he follow the statutory procedure for discharge as surety. Therefore, the Senior Resident Magistrate acted within his powers, and there was no basis to reverse or terminate the forfeiture order.
Court Disposition
application dismissed
Orders
- The application for revision is dismissed.
- The forfeiture of the bond stands as ordered by the trial court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL REVISION NO. 12 OF 2001
SALMIN BWANAHERI BWANAMKUU ………….…… APPLICANT
V E R S U S
ATTORNEY GENERAL …………………….…………RESPONDENT
RULING
The applicant SALMIN BWANAHERI BWANAMKUU stood surety with another person to a Pakistani National who had been charged jointly with another in trafficking in drugs against narcotic drugs and psychotropic substances Control Act No. 4 of 1994. The first accused AMJID JAVAID HAJI was a Pakistani National. He was ordered to be released on bail pending trial under conditions that he signed a bond of Kshs. 200,000/- with one similar surety and a deposit of his passport.
He had 3 passports. Police suspected them to be fake so the court now ordered that sureties be two. The applicant became the second surety but the accused disappeared and did not attend court and so court asked the applicant to forfeit his bond of Kshs. 200,000/- or face an arrest by issuing a warrant of arrest.
The applicant wants this order reversed or terminated and brings this application under Section 362 and 364 of the Criminal Procedure Code for Revision.
Under Section 131 of the Criminal Procedure Rules sufficient cause is not shown and the penalty is not paid the court may proceed to recover it by issuing a warrant for attachment and sale of his property but before that court is to call the surety under Section 131(1) to ascertain that the recognizance has been forfeited and to show cause why it should not be paid. It is upon the applicant surety to satisfy the court why he should not pay the recognizance. Where a surety wants to be discharged he must follow the procedure under Section 128 of the Criminal Procedure Code. As a general rule neither the arraignment nor conviction discharge recognizance which continues to bind both recognizance and surety until sentence or discharge under Section 128.
In this case the Learned Senior Resident Magistrate was within his powers under the Act. Application dismissed. Dated and delivered at Momb asa this 15 th day of August 2003.
In presence of:
Read to Mr. Gumo – Provincial State Counsel
No appearance for Applicant
A. I. HAYANGA
JUDGE.