[2022] KEHC 10298 (KLR)

State v Magamu; Chemagosi (Applicant) (Criminal Case 17 of 2017) [2022] KEHC 10298 (KLR) (17 May 2022) (Ruling)

Neutral citation: [2022] KEHC 10298 (KLR)

Republic of Kenya

In the High Court at Siaya

Criminal Case 17 of 2017

RE Aburili, J

May 17, 2022

Between

State

Prosecution

and

Walter Magamu

Accused

and

Solomon Chepseba Chemagosi

Applicant

Ruling

1. This Ruling determines the application dated March 22, 2022filed under Certificate of urgency by Solomon Chepseba Chemagosi seeking orders:(1)Spent(2)That this court be pleased to stay the implementation and or enforcement of the Ruling / orders made on 3/1/2019 and 16/9/2019 respectively pending interpartes hearing and determination of the application herein.(3)That this honourable court be pleased to review the Ruling and or orders made on 3/1/2019 and 16/9/2019 by vacating, setting aside and discharging the said orders against the applicant herein in view of the fact that the accused person herein Walter Magamu has since been traced, arrested and is now in the custody of the police to face full trial herein for the offence he committed.(4)That this honourable court be pleased to discharge the applicant as a surety for the said accused person and return to him his original title deed in respect of land parcel known as Block 20/Kapyemit/868 deposited in court as security to secure the release of the accused person on bond.

2. The application filed on behalf of the applicant/surety by Ms Osango & Company Advocates is predicated on 12 grounds on the face of the application and supported by the affidavit of Solomon Chepseba Chemagosi, reiterating the aforesaid grounds.

3. The applicant’s case is that on 4/12/2017, he executed bond and stood as surety for the accused Walter Magamu facing a Murder charge contrary to section 203 as read with section 204 of the Penal code.

4. That the security was land parcel No. Block 20/Kapyemit/868 for bond of Kshs. One Million (Kshs. 1,000,000/=) to secure the release of the said accused person and the applicant undertook to ensure that the accused attends court whenever required to do so.

5. That the accused attended court severally upon being released on bond but he later absconded without the applicant’s knowledge, upon which the applicant as surety was summoned by the court to explain the whereabouts of the accused and that he did attend.

6. Further, that it took the applicant time to trace the whereabouts of the accused since it was during the said period that the applicant was mourning the loss of his wife.

7. That on 3/1/2019, this court granted the applicant 90 days to trace and avail the accused to court and that in default, the bond used to secure the release of the accused person would be forfeited to the State for the sale by public auction of the land cited herein to recover the sum of Kshs. One million.

8. That the applicant’s efforts to trace the accused failed so on 16/9/2019, this court made an order that the said parcel of land be forfeited to the State for sale to recover the sum of Kshs. 1,000,000/=.

9. That the applicant continued making efforts to trace the accused and that the accused was arrested in Nairobi and produced in court on 16/3/2022 and is currently in custody awaiting trial.

10. That since the applicant had made efforts to trace the accused, he seeks that this court be pleased to review the orders of 3/1/2019 and 16/9/2019, vacate, set aside or discharge the said orders and also discharge the applicant from standing surety for the accused.

11. That the applicant is sickly from diabetes and high blood pressure which has affected his health and that he stands to suffer irreparable loss and damage if the application is not allowed as prayed.

12. The Respondent state did not file any response to the application.

13. The application was argued orally.

14. Mr. Osango advocate prosecuted the application on behalf of his client the applicant/surety while Ms. Ochola Prosecution counsel appeared on behalf of the Respondent State.

15. In his submissions by Mr. Osango on behalf of the applicant, counsel reiterated the grounds and the depositions by his client adding that the property in issue is the only property owned by the applicant and that he will suffer if it is sold. He relied on the case of David Lumatete Mwanje v DPP [2019] eKLR wherein A.C. Mrima J unconditionally discharged the surety and ordered for release of the security which had been proclaimed for sale by the auctioneers.

16. Opposing the application through oral submissions, Miss Ochola submitted that when the applicant herein appeared to stand surety for the accused, his obligations were explained to him and he agreed to be bound by the same.

17. That he breached those obligations and that when he appeared before this court on 3/1/2019, and on 16/9/2019, the court explained to him the position.

18. Further, that before the order for forfeiture was made, due process was followed under Section 131 of the Criminal Procedure Code. Further, that the court granted to the applicant 90 days to trace and avail the accused but he failed.

19. Counsel submitted that the accused was arrested after three (3) years, which was delayed justice for the victim. She submitted that courts do not make orders in vain.

20. In addition, it was submitted that the land having already been forfeited to the State, the application herein is overtaken by events hence it should be dismissed.

21. In a brief rejoinder, Mr. Osango submitted that Section 131 of the Criminal Procedure Code applies to the lower court and that there is no clear provision for the High Court.

22. Counsel submitted that the applicant does not dispute the order of forfeiture of his land to the State but that the same has not been auctioned and that the applicant will suffer double jeopardy if he loses his land and yet the accused is before court. He urged this court to, on humanitarian grounds, reconsider its decision and grant the orders sought, noting that the applicant’s health is bad with diabetes and high blood pressure.

Determination 23. I have considered the application dated 22/3/2022, the grounds and deposition in support. I have also considered the oral submissions for and against the application. In my view, the main issue for determination is whether this court should grant the orders sought and if not, what orders should this court make.

24. To resolve the above issue, it is first and foremost, important, to define who a surety is and what bond and bail are. Simply stated, a surety is a person who guarantees that an accused person who is granted bail will appear for trial on their next scheduled court appearance. A surety may be required to deposit cash with the court which sum may be forfeited if the person in whose favour the guarantee is given does not appear as guaranteed. On the other hand, bond is an undertaking, with or without sureties or security, entered into by an accused person in custody under which he or she binds self to comply with the conditions of the undertaking and in default of such compliance to pay the amount of bail or other sum fixed in the bond.

25. Bail, on the other hand, is an agreement between an accused person or his / her, sureties and the court that the accused person will attend court when required, and that should the accused person abscond, in addition to the court issuing warrants of arrest, a sum of money or property directed by the court to be deposited, will be forfeited to the court.

26. Article 49(i)(h) of the Constitution guarantees an arrested person the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.

27. Administering these provisions entails balancing of rights of accused persons to liberty and to be presumed innocent until proven guilty. (See Article 50 (2)(a) of the Constitution )

28. Due to the disparities in the courts’ exercise of discretion in granting bail and bond to accused persons or suspects, the Judiciary, through the National Council on the Administration of Justice (NCAJ) developed the Bail and Bond Policy Guidelinesto guide the police and judicial officers in the application of laws that provide for bail and bond.

29. The presumption of innocence under Article 50(2)(a) of the Constitution dictates that accused persons should be released on bail or bond pending trial or investigations. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management.

30. Since every accused person has the right to liberty, it follows that every accused person should not be detained, but should be released subject to their guarantee to appear for trial. The bail and bond policy therefore commands that pretrial detention should be a measure of last resort. As such, the criminal justice institutions should make every reasonable effort to avoid pre-trial detention. Once granted bail or bond, the accused person has an obligation to attend his trial. Bail and bond are securities that aim to procure the release of an accused person from legal custody together with an undertaking that he or she will appear for trial.

31. Under the said bail and bond policy guidelines, the courts when considering the suitability of a proposed surety should take into account the following factors:(a)Financial resources;(b)Character and any previous convictions;(c)Relationship to the accused person;(d)Any other relevant factor.

32. The proposed surety is expected to attest to these factors and the Prosecutor should participate in this process of approving sureties.

33. Courts are also expected to ensure that sureties understand their obligations and the risks they assume when they undertake to serve as sureties. Once a court accepts a person as a surety, it should explain his or her obligations and require him or her to sign a Notice of undertaking of bail, setting out the accused person’s bail conditions and the consequences for the surety if the accused person breaches those conditions.

34. Applying the above principles to this case, the accused person is Walter Magamu. On 13/10/2017, he was arraigned for the alleged murder of Mercy Muhenje Angu which allegedly occurred on 28/8/2017 in Yala Township location of Gem Sub County within Siaya County. He pleaded not guilty to the charge/Information of Murder dated 31st August, 2017 signed by Eliphas Ombati, Principal Prosecution Counsel. The Plea was taken before Hon. J.A. Makau J. On that date, the accused was represented by Mr. Amanda advocate appointed by the Deputy Registrar of this court. The advocate sought for time to file an application for bail and by an application dated 2/11/2017, the accused person’s counsel sought for release on bail pending trial which application was heard on 1/12/2017 argued by Mr. Musiega advocate for the accused Person.

35. On 7/11/2017, the court was notified that the accused was gainfully employed as an Administration police officer and that if he was not released, he could lose his job as he was the sole breadwinner of the family.

36. The learned Judge did grant the accused person a personal bond of Kenya shillings One million with one surety of similar amount or cash bail of Kshs. 700,000/= with one surety of similar amount. The court also set other conditions as follows:“.... 2. That upon release, the accused to be reporting at Yala Police Station, once every month on each 15th day of the month starting December 2017 till the court orders otherwise.3. The accused upon being released, not to go near or visit the deceased’s biological child under custody of his grandparents.4. That upon breach of any of the terms set out herein above or failure to attend any mention or hearing date, the court shall cancel the bond, the bond shall stand cancelled and accused remanded back to custody.J.A. Makau, Judge…”

37. On 4/12/2017, the proposed surety Mr. Solomon Chepseba, who is the applicant herein was examined by the Deputy Registrar of this court and the proceedings are as follows:“4/12/2017Before Hon. T.M. Olando (DR)Court clerk: Kevin and ModestarProsecutor: NamasakeAccusedProposed surety sworn states in Kiswahili:I am Solomon Chepseba Chemogos, I live at Eldoret. I work with Kenya Power.I want to stand surety for Walter Magamu.He was given a bond of Kshs. 1,000,000/=. I want to give my title deed as security. The land is number Eldoret Municipality, Block 20 (Kapyemit) 868. I know the Chief of the area. He is called Madam Rukia. The Assistant Chief is Philemon.Mobile Number 0723XXXXXX.I know that it is my responsibility to make sure the accused comes to court and if he fail, I shall pay Kshs. 1,000,000/= or my land shall be sold by the government.T.M. Olando, Deputy RegistrarCourt Prosecutor:No objection.T.M. Olando, Deputy RegistrarCourt:The bond is approved together with copy of ID, Valuation report, search, PIN certificate to be deposited in court pending hearing and determination of the case.T.M. Olando, Deputy Registrar…….”

38. I reiterate that the surety finally stated as follows in his own words:“I know that it is my responsibility to make sure the accused comes to court and if he fails, I shall pay Kshs. 1,000,000/= or my land shall be sold by the government.”

39. The surety was then approved and a copy of his identity card, valuation report, Land Title No. Eldoret Municipality/Block 20 (Kapyemit) 868, search certificate and Pin Certificate were deposited in court pending hearing and determination of the case. The applicant deposited copy of his staff card No. 10860 for Kenya Power. He signed a form with particulars of the surety stating that the accused was his nephew. He also signed the Bond and Bail Form Criminal 95 all dated 4/12/2017 and a release order was issued for the accused person to be released from Siaya G.K. Prison.

40. On 26/1/2018, the court fixed a hearing date for 10/4/2018 but on the latter date, the Defence counsel did not attend court and neither did he attend court on 14/5/2018 when I first handled this matter. I fixed a hearing date for 9/10/2018 as I was to be away on leave.

41. On the latter date, the advocate was absent. The Prosecution on this occasion had 7 witnesses present. The advocate had been instructed by the accused person himself. The court paid all the 7 witnesses their travelling expense of Kshs. 2,000/= each totaling Kshs. 14,000/= to and from Serem. There were also police officers witnesses who had since left their stations on transfer. The court then ordered that Mr. Alwanda attends court to show cause why he should not be held in contempt of court for failure to attend court.

42. That was the last time the accused attended this court (9/10/2018). Despite the court granting the accused person last adjournment, on 21/11/2018, the accused never attended court. The same situation prevailed on all subsequent dates fixed by the court for the mention after issuing a warrant of arrest on 21/11/2018 and summons issued to the surety.

43. On 5/12/2018 when the surety did not attend court, I issued warrant of arrest as he had been served. On 18/12/2018, I issued summons to the DCIO Yala to appear and explain by way of an affidavit the efforts made to trace the accused and his surety who had failed to attend court and show cause.

44. On 3/1/2019 the DCIO Gem Chief Inspector Kirwa Tarus appeared and he also filed an affidavit explaining the situation. With him in court was the surety herein Mr. Solomon Chepseba who told the court as follows:“I am aware that I stood surety for Walter Magamu. He is my nephew. His mother is my sister. I live in Eldoret. I am an employee of KPLC. I know what it entails to stand surety for someone. I submitted my title deed to court as security.I ask the court to give me ample time to look for the accused person. I last spoke to him in October 2018. I learnt that the accused stopped coming to court last month when the DCIO notified me. I went to the accused person’s home and inquired from his father who told me that the accused sold everything at home and left.I also learnt that he had been in Mombasa. I called some relatives in Mombasa who told me that they saw him but that he disappeared in the slums of Mombasa.I am planning to go there myself and trace him. I request for three months to look for the accused person. I am aware that if I do not trace the accused person and present him before this court, my land will be sold by this court to recover the bond money. I stood surety for him as my nephew.”

45. The court then made the following Ruling upon hearing the surety:“Ruling The DCI Gem Chief Inspector Kirwa Tarus is before court. He has sworn an affidavit on the efforts made in tracing the accused Walter Magamu who is at large. He has also availed the surety Mr. Solomon Chepseba who has shown cause why his security cannot be forfeited by this court at this moment. I shall in the interest of justice grant the surety 90 days of today to trace and avail to this court the accused person Walter Magamu. In default, the security deposited in court shall be forfeited. The warrant of arrest for the said Walter Magamu remains in force. Mention on 9/4/2019 pending arrest of the accused. The surety to attend court then with or without the accused person. Orders accordingly.”

46. Subsequently on 9/4/2019 and 20/5/2019, the surety attended court seeking for more time to locate the accused.

47. On 16/7/2019, the Surety again appeared in court to show cause why he could not forfeit the security given to the State as the accused had jumped bail.

48. The surety was sworn and he gave evidence of show cause. The court made an order that the surety pays into court Kshs. 1,000,000/= within 60 days and in default, the security deposited in court be forfeited, attached and sold to recover the proceeds thereof in accordance with Section 131 of the Criminal Procedure Code. On 16/9/2019, exactly 60 days later, the surety appeared in court represented by Mr. Ochanyo Advocate seeking for 30 days to produce the accused person. He then stated as follows in his own words:“Mr. Solomon Chepseba:I have not deposited into court the money as directed by the court on 16/7/2019. I pray for another 30 days to look for the money and if I do not get the money, the land can be sold.”

49. The court made the following order:“Court Order:The surety has not demonstrated before this court the efforts if any that he has made towards raising the Kshs. One million to pay into court.In the premises, and in accordance with the order of 16/7/2019, the Land Parcel No. Eldoret Municipality/Block 20 (Kapyemit)/868 whose Title Deed was deposited into court on 4/12/2017 stands forfeited to the court and available for sale to recover Kshs. 1,000,000/= the amount of surety undertaken by the surety Solomon Chepseba for the release of the accused Walter Magamu.The court shall accordingly, through the Deputy Registrar proceed with the sale of the said parcel of land in accordance with Section 131 of the Criminal Procedure Code.The warrant of arrest for Walter Magamu shall remain in force.Mention on 29/10/2019. This file be kept in safe custody. Orders accordingly.”

51. On 29/10/2019, the Surety appeared through another advocate Mr. Oduor saying that he had filed an affidavit on efforts to trace the accused in vain. The case was then last mentioned on 17/12/2019 before Corona Virus-19 struck in March 2020.

52. From the above verbatim extracts of the court proceedings herein, it is clear to this court that the surety herein now applying is not an illiterate person. He is not an ignorant person. He knew the implications of standing surety for his nephew and consequences that would follow if the nephew did not attend court or absconded. The surety even hired advocates on two occasions to represent him on this same issue of sureties and the court made pronouncements on each of those two occasions.

53. On 7/3/2022, the accused was brought under a warrant of arrest and he stated that he had been in Nairobi doing casual jobs. That he escaped because he was disturbed and that his family were not supportive. The court appointed Mr. Were Advocate to represent him and fixed his case for hearing on 17th and 18th May, 2022.

54. On 23/3/2022, this court was confronted with this application dated 23/3/2022 subject of this Ruling seeking to lift the orders forfeiting the security to court and attaching the said security for sale to recover the bond money. It is important to note that a prohibitory order was registered by the Land Registrar on the said title, attaching it for sale to recover the bond money.

55. That the long history to this matter.

56. Reading the decision in David Lumatete Mwanje Versus Republic in Migori Misc. Cr. Revision Application No. 12/2019 relied on by Mr. Osango advocate for the surety applicant herein, no doubt, that case is distinguishable from this case as the facts and circumstances of each of these two cases are totally distinct. Tin the above cited case, the High court - A. C. Mrima J was confronted with a situation where the magistrate’s court forfeited security and refused to discharge the surety who had not been given a hearing and commanded that the surety pays the auctioneers their costs or charges first before the surety is discharged and his security released.

57. That is not the situation here where the surety was attending court on each occasion, was heard substantively, not once, not twice, but severally and even on oath. He gave an undertaking to avail the accused person to court. He also undertook to pay into court the bond money after the court forfeited the security upon him failing to trace the accused. The order forfeiting security to the State was made in his presence after a hearing. He has not complained that he was condemned unheard. He acknowledges that the court did not make any error as none of such error is disclosed. He only beseeches this court, on humanitarian grounds, to release his security forfeited and discharge him as surety.

58. The question is whether this court should, on humanitarian grounds, review its owners herein impugned.

59. In Kasanga Joel Mulwa and Kibet Saina Tegekyon v Republic[1983]eKLR where two advocates stood surety for an accused person, a fellow advocate James Aggrey Orengo who had been charged with three counts of forgery, uttering a forged document and theft by in (Nrb HC CRA Nos. 1264 of 1992 and 19/1983 consolidated, A.H. Simpson CJ in his judgment delivered on 18th January 1983 considered an appeal where the accused failed to attend court for the hearing of his criminal case after being released on bond of Kshs. 50,000/= plus one surety of similar amount. A warrant of arrest was issued against him and the sureties were summoned to show cause why the amount of their bonds should not be forfeited.

60. After hearing the advocates for the sureties and the State counsel, the learned Chief Magistrate delivered a ruling forfeiting the bonds with partial remission and ordered each surety to pay Kshs. 40,000/= by 3/1/1983, from 21/10/1982.

61. Aggrieved by that Ruling, the sureties appealed to the High Court challenging the magistrate’s holdings that: the sureties’ undertakings to secure the presence of the accused in court were absolute and the liability to forfeiture unqualified; in failing to enquire into the extent to which the sureties were to blame for the disappearance of the accused; …in failing to appreciate that the forfeiture is neither mandatory nor punitive; and that the amount forfeited was manifestly excessive.

62. The learned Chief Justice found that each of the sureties had seriously entered into an obligation to ensure the attendance of the accused person and had undertaken to forfeit the full amount of his bond in the event of default.

63. Further, that there need be no collusion or want of diligence on the part of a surety before a court can order the whole or part of the amount to be forfeited. In addition, that if the surety desires the court to exercise its discretion to remit the whole or part of the amount he has undertaken to pay, he must persuade that court that by his efforts, he deserves such remission, or that his means are such that forfeiture of the whole amount would be unjust.In the instance case, just like in the above case, there is no evidence that the applicant (surety contributed to the disappearance of the accused person and therefore, that is not a factor that this court took into account when making the order for forfeiture of bond signed after hearing the surety by way of show cause; and thereafter attaching the security for title number Eldoret Municipality, Block 20 (Kapyemit) 868 as deposited in court. The Applicant surety herein is well aware that this court has already ordered for forfeiture of the security and attached it.

51. I reiterate that when a person stands as surety for an accused person, he accepts, as the applicant herein did accept, the attendant consequences. He binds himself to ensure that the accused person attends court at all times during the trial and that should the accused fail to attend court, the surety would forfeit the sum of money secured in the bond, to court. The applicant having accepted to bear that responsibility for his nephew, his sister’s son who was a police officer, he cannot seek and obtain this court’s discretion on humanitarian grounds. As was started by G.W. Ngenje - Macharia J in John Otieno v Republic[2015]eKLR:“Were the application by the (surety) to be granted, it would set a bad precedent where sureties come to court as a matter of formality. Once the bond is secured, an accused person would abscond with the assurance that after all, the surety would be discharged. That is why the surety is sworn to an obligation to ensure that an accused attends court throughout the entire trial…”

51. I have no reason to differ from the above persuasive holding by my sister Judge on a similar issue.

52. For the above reasons, whereas I sympathize with the applicant that his property as given as security for the release of the accused person herein on bond has to be sold to recover the bond, I am unable to find in his favour. I decline the application and prayers sought. The application is hereby dismissed. The Deputy Registrar of this court to proceed and have the title to Land No. Eldoret Municipality/Block 20/Kapyemit as attached by this court, sold by public auction to recover the sum of Kshs. 1,000,000/= plus the auctioneers’ charges unless the applicant herein deposits into this court the sum of Kshs. 1,000,000/= bond money within the next 14 days of today as the applicant has had sufficient time from the moment the land was forfeited to when it was attached to date, to pay into court the money. Instead, he has gone round the circles seeking this court to discharge him and to return to him the security deposited into court.

53. I further direct that this file shall at all times be kept in safe custody of the Deputy Registrar of this court until the case herein is heard and fully determined and the security for bond granted to the accused person as forfeited and attached is realized and monies paid into court.

54. I so order.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 17TH DAY OF MAY, 2022R.E. ABURILIJUDGEIn the presence of:Mr. Osango Advocate for the applicant –virtuallyMr. Chepseba the applicant suretyAccused is presentMr. Were Advocate for the accused person is presentCA: Modestar and Mr. Mboya