Kenya Judgment

High Court · High Court at Mombasa

SALMIN BWANAHERI BWANAMKUU Vs ATTORNEY GENERAL [2003] KEHC 261 (KLR)

On this page

Professional case brief

Research organized from the available case record

Source document

01

Holding and result

The court found that the applicant, as surety, was properly called upon to forfeit the bond after the accused absconded. 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 liability, nor did he follow the statutory procedure for discharge as surety. Therefore, the application for revision was dismissed, and the order for forfeiture and possible arrest remained valid.

Court disposition

application dismissed

Orders

  • The application for revision is dismissed.
  • The order for forfeiture of the bond and warrant of arrest against the applicant stands.

02

Material facts

Parties

Salmin Bwanaheri Bwanamkuu

Applicant

Attorney General

Respondent Counsel: Mr. Gumo

Amounts and remedies

  • Bond Amount Forfeited: KES 200,000

03

Procedural history

  1. Posture

    Criminal Revision / Ruling

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant sought reversal or termination of the order requiring forfeiture of his bond or his arrest, arguing that he should not be held liable as surety after the accused absconded.
Respondent
The respondent, represented by Mr. Gumo, maintained that the trial magistrate acted within the law and that the applicant had not shown sufficient cause to avoid forfeiture of the bond.

05

Court’s reasoning

  1. 01

    Section 131 Criminal Procedure Code

    A surety is liable to pay the recognizance if the accused fails to attend court, unless sufficient cause is shown.

  2. 02

    Section 128 Criminal Procedure Code

    The procedure for discharging a surety is set out under Section 128 of the Criminal Procedure Code, and recognizance continues to bind until sentence or discharge.

  3. 03

    Section 131(1) Criminal Procedure Code

    The court must call the surety to show cause before enforcing forfeiture and recovery of the bond.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant, as surety, was properly called upon to forfeit the bond after the accused absconded. 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 liability, nor did he follow the statutory procedure for discharge as surety. Therefore, the application for revision was dismissed, and the order for forfeiture and possible arrest remained valid.

Obiter and limits

  • A surety who wishes to be discharged must strictly follow the procedure under Section 128 of the Criminal Procedure Code.
  • Neither arraignment nor conviction of the accused automatically discharges the surety's recognizance.

Court disposition

application dismissed

  • The application for revision is dismissed.
  • The order for forfeiture of the bond and warrant of arrest against the applicant stands.

Source and reliance status

High Court

This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.

Judgment reading view

Judgment text

The complete available source text.

Source document

High Court

Judgment

[2003] KEHC 261 (KLR)

REPULIC 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.

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Criminal Procedure Code (Cap 75)

Legislation

Legislation referenced in the available case record.

Narcotic Drugs and Psychotropic Substances Control Act No. 4 of 1994

Legislation

Legislation referenced in the available case record.

Case-aware research

Ask AI about this case

The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.

About this LexChat collection

This page organizes the available case record for research. Verify quotations, current status, and subsequent treatment against the source document. Corrections can be reported to hello@esheria.ai.

Legal information, not legal advice. Research summaries do not replace the judgment.