SALMIN BWANAHERI BWANAMKUU Vs ATTORNEY GENERAL [2003] KEHC 261 (KLR)
- Citation
- [2003] KEHC 261 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Posture
- Criminal Revision / Ruling
- Case number
- ? 12 of 2001
- Language
- English
More details
- Court
- High Court
- Posture
- Criminal Revision / Ruling
- Case number
- ? 12 of 2001
- Language
- English
On this page
Professional case brief
Research organized from the available case record
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
ApplicantAttorney General
Respondent Counsel: Mr. GumoAmounts and remedies
- Bond Amount Forfeited: KES 200,000
03
Procedural history
Posture
Criminal Revision / Ruling
04
Questions and positions
Legal issues
- 01
Whether the applicant surety is liable to forfeit the bond after the accused absconded court proceedings.
- 02
Whether the procedure for forfeiture and recovery of the recognizance was properly followed by the trial court.
- 03
Whether the applicant is entitled to discharge from liability as surety under the Criminal Procedure Code.
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
Legal principles
- 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.
- 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.
- 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
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
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.
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