[2022] KEHC 15380 (KLR)

Shanghavi & another v Republic (Criminal Revision E200 of 2022) [2022] KEHC 15380 (KLR) (Crim) (16 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15380 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Criminal Revision E200 of 2022

JM Bwonwong'a, J

November 16, 2022

Between

Jayesh Umedlal Shanghavi

1st Applicant

Nina Jayesh Shanghavi

2nd Applicant

and

Republic

Respondent

(An application for revision of the ruling delivered by Hon W Nyamu (S R M) on February 14, 2022 in Nairobi Chief Magistrates Court Criminal Case No E1274 of 2021 Republic vs Jayesh Umedlal Shanghavi, Nina Jayesh Shanghavi & another)

Ruling

1. The applicants have been charged with the offence of obtaining execution of a security by false pretences contrary to section 314 of the Penal Code. They pleaded not guilty to the charges and were granted bail/bond.

2. The applicants have filed an application pursuant to articles 25 (c), 50 (1), 165 (6 and 7), and 259 (1) of the Constitution of Kenya, sections 81 (a & e (ii)), 362 and 364 of the Criminal Procedure Codeand all other enabling provisions of the law.

3. The substantive prayers sought in the notice of motion dated July 27, 2022 are as follows:i.The High Court to call for the record and proceedings of the trial court for the purposes of ascertaining the correctness and legality of the decision and ruling made on February 14, 2022; and issue any other order or direction that is appropriate to ensure the fair administration of justiceii.An order to revise the ruling and/or terms of the trial court for the release of the applicants’ passports made on February 14, 2022Leave be granted to the 1st and 2nd applicants to leave the jurisdiction of the court and travel to London for a limited period of 60 days to seek urgent medical treatment for the 2nd applicant.iii.The High Court to set reasonable terms and conditions for the release of the applicants' passportsiv.Nairobi Chief Magistrates Court Criminal Case no E1274 of 2021 be placed before another and/or a different judicial officer other than the magistrate currently handling the matter.v.Costs of the application be provided for.

4. The application is supported by the grounds that are set out on the face of the notice of motion and an affidavit dated July 28, 2022 sworn by the applicants. The major averments are as follows. The applicants are husband and wife and are jointly charged before the subordinate court. The 2nd applicant suffers from a medical condition known as acute pulmonary embolism; which if left untreated may result in stroke or sudden death. On February 3, 2022 the applicants made an application before the subordinate court seeking leave to travel to Dubai for specialized treatment and the release of their passports. On February 4, 2022, the trial court delivered a ruling allowing the applicants to travel to Dubai on the condition that they each deposit a sum of Kshs 5,000,000 as security before leaving the country. Further, the trip was to take 7 days which would include the date they board the flights to Dubai and the return date.

5. Being aggrieved by the conditions set by the trial court, the applicants sought a revision of the said terms. On February 14, 2022 the trial court rendered a ruling on the revision application and revised the terms of travel. The applicants were required to provide sureties of Kshs 250 million, who are Kenyan citizens, a valuation of the properties be done by the government valuer and the sureties will only be released once the applicants are back from Dubai. The applicants contend that these terms are onerous, punitive, oppressive and beyond their reach.

6. It is the applicants’ case that the 2nd applicant is currently on blood thinners to prevent clot formation in her heart but local doctors have stated that the medications available locally are not sufficient. She urgently needs specialised medical treatment which is not available locally. She was previously restricted to travel to the United Kingdom due to travel restrictions occasioned by Covid-19. The 1st applicant needs to accompany his wife to provide the necessary care and support, while she undergoes treatment in London. Further, the 2nd applicant’s father is a Kenyan citizen and is willing to stand surety for them to guarantee their return to the jurisdiction of the court for the trial.

7. In opposition to the application, the respondent filed grounds of opposition dated August 19, 2022. The grounds raised were that the application does not exhibit how the court order issued on February 14, 2022 was illegal, improper, or incorrect and/or proceedings leading thereto were irregular. The applicants have not established any grounds for this court to interfere with the trial court's discretion. The trial court took into consideration all the material facts availed before her and properly directed her mind in reaching a fair and correct decision. The applicants have not demonstrated that the trial court was biased or is likely to be biased and it is expedient that the ends of justice will be served if an order of transfer is made. The application lacks merit, is an abuse of the court process and should accordingly be dismissed.

The applicants’ written submissions 8. Ms Soweto learned counsel for the applicants submitted that the trial magistrate complained of has shown that she is easily and improperly influenced by matters outside her jurisdiction. It would therefore be inappropriate to go back before the same judicial officer against whom a complaint of bias and/or prejudice has been made.

9. It was further submitted that the 2nd applicant has a paramount right to human dignity and good health to face trial. It is therefore imperative that the orders sought to be granted to allow her attend to a critical health issue before the criminal trial can commence. In addition, the court should strike an appropriate balance between the right to an expeditious hearing and the right to a fair trial.

10. Counsel therefore urged the court to grant the orders sought.

The respondent’s written submissions 11. Ms Edna Ntabo, learned prosecution counsel submitted that the High Court exercises the power of revision or supervisory powers only in exceptional circumstances, where there has been a miscarriage of justice owing to a defect in procedure or a manifest error on a point of law. That the applicants have not demonstrated any excessive or unreasonable terms set by the trial court. Further, the trial court has not taken into account wrong facts or failed to take into account proper principles to warrant a review of the trial court’s orders.

12. Counsel further submitted that the conditions granted by the trial court for the release of the applicants’ passports were arrived after considering all the relevant factors including the applicants’ obligations to attend the trial, their previous conduct, the nature of the charges as well as the views of the victim.

The submissions of the victims 13. Counsel for the victims (Mr Njoroge) supported the ruling of the trial court.

Issues for determination 14. I have considered the application, the submissions by the parties and the applicable law. The issues that arise for determination are:SUBPARA 1. Whether the ruling and/order of the lower court should be revised.SUBPARA 2. Whether the criminal case should be transferred to another magistrate for hearing and determination.

Analysis and determination 15. The power of this court in its revisionary jurisdiction is founded under section 362 of the Criminal Procedure Code (Cap 75) Laws of Kenya, which provides that:“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.”

16. Additionally, the High Court is vested with supervisory jurisdiction by article 165(6) of the Constitution of Kenya which provides that:“The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.”

17. The jurisdiction of this court is not in doubt in view of the above provisions. Where the court finds that the findings, sentence, or order recorded or passed by the subordinate was either not correct, unlawful or improper, the remedy under section 364 is either to reverse the sentence where there has been a conviction or alter the finding while maintaining the sentence, reduce or increase the sentence as prescribed by section 364 of the Criminal Procedure Code.

18. The issue that I have to consider, therefore, is whether to revise the order of the subordinate court setting the conditions for the release of the applicant's passports to enable them to travel outside the jurisdiction of this court. The conditions for travel set by the court were that the applicants were each required to provide sureties in the amount of Kshs 250 million and be of Kenyan citizens. A valuation should also be done by a government valuer and the sureties would be released upon their return to Kenya.

19. I have considered the impugned ruling of the subordinate court. In setting the conditions for the release of the applicants’ passports, the learned trial magistrate stated that the court took cognisance of the insistence by the applicants of their intention to settle the matter. That the application for insolvency signed by the 1st applicant told of different intentions. The 1st accused had also made another application for the release of his passport to travel to Dubai for a business trip but the prayers were denied as the whereabouts of the 2nd accused were unknown and there were pending warrants of arrest against her. In addition, the two cases (the insolvency case and the criminal case) will be greatly affected if the accused persons fail to return to Kenya and the victims have raised reasonable objections to the release of the passports. She went on to submit that there was no evidence to suggest that the 2nd applicant’s condition could not be treated in Kenya.

20. In setting the terms of release of the passports, the subordinate court was exercising its discretion and considered the circumstances of the case. The applicants have been charged with obtaining execution of a security by false pretences contrary to section 314 of the Penal Code. The particulars of the offence are that between December 10, 2018 and November 23, 2020, in Nairobi, by false pretence and with intent to defraud, jointly with others not before court, induced Victoria Commercial Bank Limited to execute a charge over apartment number B2 erected on Land Reference number 1870/11/253 in Nairobi to secure the amount of Kshs 520,000,000 as valuable security.

21. From the record, it’s unclear how the learned trial magistrate came up with the figure of Kshs 250 million as the surety amount required for each accused to secure the release of their passports. This court is left to assume that the court considered the amount of Kshs 520 million provided in the charge sheet. It is noteworthy that the applicants have already been released on reasonable bail/bond terms.

22. By releasing them on bail/bond, the court gave a stamp of approval that they are not a flight risk, will not interfere with prosecution witnesses and will attend court for the hearing of their case. Further, they are presumed innocent until proven guilty. The conditions for the release of the passports is to allow the 2nd applicant to access medical facilities outside Kenya and also to ensure that the accused persons attend court for the hearing of their case.

23. Bail should not be excessive. This is clear from the provisions of section 123 of the Criminal Procedure Code (Cap 75) Laws of Kenya; whose provisions read as follows:“123 (1) ………………………….(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive. “

24. The issue as to the amount of bail to be determined is problematic issue. In setting the terms of bail/bond the court is to be guided by the circumstances of the case. Additionally, the amount of bail should not be excessive as this will amount to denying bail/bond to the accused person.

Issue 1 25. I find that the conditions set by the trial court are manifestly excessive and are far greater than what is necessary to ensure or guarantee the accused persons' appearance before the court. This was tantamount to denying the 2nd accused access to medical facilities outside the jurisdiction of this court. Like all judicial discretion, it must be exercised judiciously. It cannot be exercised based on whims, caprice or sympathy.

Issue 2 26. On the second issue, the applicants claimed that the learned trial magistrate was biased and as such the case be placed before another and/or different magistrate other than the court that is currently trying their case.

27. From the record, there is no evidence to prove the allegations of impropriety or bias on the part of the trial court.

28. The sum total of the analysis is that the application dated July 27, 2022 partly succeeds as shown below in the following terms:1. The 1st and 2nd applicants are hereby granted permission to leave the jurisdiction of this court and travel to London for 60 days from the day of release of their passports.2. The passports of the 1st and 2nd applicants to be released to them on condition that they deposit in court a sum of Kshs 2,000,000 each as security which shall be returned to them upon their return to Kenya.3. The valuation of their properties and those of their sureties should be done by any qualified and registered valuer in Kenya.4. There will be no order as to costs as costs are rarely granted in criminal cases unless they are authorized by statute and may only be paid in exceptional circumstances. See Municipal Council of Dar es Salaam v Almeida (1957) EA 244.

Ruling signed, dated and delivered in open court at Nairobi this 16th of November 2022. J M BWONWONG’AJUDGEIn the presence of-Mr Kinyua court assistantMs Soweto for the applicantsMs Edna Ntabo for the respondentMr. Chege for the victims