[2022] KEHC 2138 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CRIMINAL APPLICATION NO.E416 OF 2021

SAMUEL WANJAU MAINA......................................................................APPLICANT

VERSUS

REPUBLIC...............................................................................................RESPONDENT

R U L I N G

1. The application herein is a Notice of Motion application dated 18th November, 2021, wherein the Applicant is seeking for orders that the court be pleased to review the Ruling issued in Milimani Criminal Case No.2064 of 2019 wherein his bond was cancelled.

2. The application is supported by an undated affidavit annexed thereto, sworn by the Applicant wherein he deposed that, he was charged with the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code; he was released on bond of Kshs.50,000/= with an alternative of cash bail of Kshs.100,000/= after taking plea; on the hearing day there was a nationwide lockdown due to Covid-19 outbreak; he was unable to log in into virtual court and when he tried to access the court premises, he was turned away at the gate; he followed up on his matter after the lifting of the lockdown and found his bond had been cancelled; he made several applications before the trial court for reinstatement but they were dismissed; he is a family man with school going children and sole bread winner; he is in fear of his health in prison due to congestion and the Covid-19 Pandemic; he prays that his bond to be reinstated since he is willing to settle the matter.

3. The application was disposed through oral submissions made by the parties on 15th December, 2021.

4. In his submissions, the applicant stated that he was charged alone. However, on 30th March, 2020 his case was consolidated after which he requested for an adjournment which was granted in May, 2020 which time there was a lock down. The case proceeded in October, 2020 where he was locked down in the village. He submitted that when he returned in February, 2021 and followed up on his case, he found there was a warrant of arrest. He stated that when he attended court in May, 2021 he was placed in custody. He submitted that he has learnt his lesson and promises that he will never fail to attend court in the event his bond is reinstated.

5. The application was opposed by the learned state counsel, Ms. Ndombi. She stated that the reason the Applicant has given for not attending court is not sufficient since she was on duty and virtual court sessions proceeded. She was of the view that in the event the court is inclined to give the applicant a second chance and reinstate his bond then the conditions imposed should be strict.

6. I have carefully considered the application, the affidavit, the submissions by the parties and read through the proceedings of the trial court. I find that by the application, the Applicant is seeking to have the orders cancelling his bond revised.

7. The power of revision is donated to the High Court by Section 362 as read with Section 364of theCriminal Procedure Code.

8. Section 362 of theCriminal Procedure Code provides as follows:-

“The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court”.

9. Section 364 empowers the court to exercise the following powers:

(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by Sections 354, 357 and 358, and may enhance the sentence;

(b) in the case of any other order other than an order of acquittal, alter or reverse the order.

(2) No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence;

Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned”.

10. I have perused the proceedings in Criminal Case No.2064 of 2019 and established that the accused person, SAMWEL WANJAU aliasALI FARIS, jointly with others was charged with the following Counts:-

Count 1– Conspiracy to Commit a Felony contrary to Section 393 of the Penal Code.

The particulars are that:-

“On or before the 5th December, 2019, at unknown place within the Republic of Kenya, jointly with others not before court conspired to commit a felony namely, Stealing of Kshs.2,810,000/= (Two Million Eight Hundred and Ten Thousand Shillings) the property of Gulf African Bank Limited”.

Count II– Stealing contrary to Section 268(1) as read with Section 275 of the Penal Code.

The particulars of the offence are that:-

“On dates between 5th December, 2019 and 7th day of December, 2019 at Gulf African Bank Limited, Kenyatta Avenue Branch within Nairobi CBD in Nairobi County, jointly stole Kshs.1,870,000/- (One Million eight Hundred and Seventy Thousand shillings) the property of the said Gulf Bank Limited.”.

Count III– Attempted Stealing contrary to Section 268(1) as read with Section 389 of the Penal Code.

The particulars of the offence are that:-

“On the 10th day of December 2019, at Gulf African Bank, Kenyatta Avenue Branch within Nairobi CBD in Nairobi county, attempted to steal Kshs.940,000/= (Nine Hundred and Forty Thousand shillings) the property of the said Gulf African Bank Limited”.

Count IV– Forgery contrary to Section 345 as read with Section 349 of the Penal Code.

The particulars of the offence are that:-

“On or before the 5th day of December, 2019 at unknown place within the Republic of Kenya, jointly with others not before court, with intent to defraud, forged a certain document namely National Identity Card Number 8535389 serial number 217229029 in the name of ALI FARIS ABDALLA purporting it to be a genuine and valid National Identification Card issued by National Registration Bureau of Kenya”.

Count V– Uttering a False Document contrary to Section 353 of the Penal Code.

The particulars of the offence are that:-

“On dates between 5th day of December, 2019 and 10th day of December, 2019 at Gulf African Bank Limited, Kenyatta Avenue Branch within Nairobi CBD in Nairobi county, knowingly and fraudulently uttered a certain document namely National Identity Card number 8535389 serial number 217229020 in the name of ALI FARIS ABDALLA to MOHAMMED ABDI HAWADILI a teller of the said Gulf African Bank Limited”.

Count VI– Personation contrary to Section 382(1) as read with Section 36 of the Penal Code.

The particulars of the offence are that:-

“On dates between 5th day of December, 2019 and 10th day of December, 2019 at Gulf African Bank Limited, Kenyatta Avenue Branch within Nairobi CBD in Nairobi county, knowingly and fraudulently uttered a certain document namely National Identity Card number 8535389 serial number 217229020 in the name of ALI FARIS ABDALLA to MOHAMMED ABDI HAWADILI a teller of the said Gulf African Bank Limited”.

11. It is noted that the Applicant was granted bail of Kshs.900,000/= with one surety or cash bail of Kshs.100,000/= in the alternative. He failed to attend court on 21st October, 2021 and a warrant of arrest was issued. Subsequently, he attended court on 19th May, 2021 and his bond was cancelled.

12. In his application and affidavit, the Applicant states that he was prevented by factors such as lock down due to Covid-19 and inability to login to the virtual court.

13. I have considered the circumstances that the Applicant states prevented him from attending court leading to cancellation of his bail. I have also considered the response by the prosecutions’ counsel. Further, I have read the proceedings and Ruling by the learned trial Magistrate. In considering the reasoning in cancelling the Applicant’s bond, I find no fault therein. The trial Magistrate’s finding and order were well within her discretion and cannot be said to have been incorrect, irregular, illegal and or tainted with impropriety.

14. However, taking judicial notice of the fact that Covid-19 lock down led to lock down in different parts of the country made travel in and out of such locked zones hard, this court is inclined to exercise discretion in favour of the Applicant. Furthermore, it is worth appreciating that virtual courts at the time was a new concept where litigants were still grappling with challenges of internet connectivity and use of technology. In the circumstances, I find the Applicant ought to be given a second chance but with strict conditions.

15. On the issue of reviewing the bond terms downwards as requested by the Applicant, the records show that the original bond of Kshs.1,000,000/= was reviewed downwards to Kshs.900,000/= on his request on 11th December, 2019.

16. I therefore allow the Applicant’s application dated 18th November, 2021by re-instating his bond in the terms granted by the trial court.

RULING DELIVERED VIRTUALLY, DATED and SIGNED at NAIROBI this 10th day of FEBRUARY, 2022

D. O. CHEPKWONY

JUDGE

In the presence of:

M/S Kibathi counsel holding brief for M/S Gikonyo counsel for the accused

Applicant in person present

Court Assistant - Gitonga