[2017] KEHC 9776 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION NO.90 OF 2017

YUSUF AGRIPPA IBRAHIMalias

ABRAHAM KIPROTICH LANGAT................APPLICANT

VERSUS

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

RULING

The Applicant, Yusuf Agrippa Ibrahim alias Abraham Kiprotich Langat is facing several counts of forgery contrary to Section 345 as read with Section 349 of the Penal Code. He is also facing several charges of uttering false documents contrary to Section 353 of the Penal Code. When he was arraigned before the trial magistrate’s court, he pleaded not guilty to the charge. He was released on bail pending his trial. His bond was however cancelled when he failed to attend court on the date that the trial was scheduled for hearing.

On 2nd October 2017, the Applicant filed an application before this court seeking orders from the court to issue one consolidated bond term for all the cases that the Applicant is facing in various courts in the Republic. The cases are before Nairobi Chief Magistrate’s Court, Makadara Chief Magistrate’s Court, Eldoret Chief Magistrate’s Court and Kericho Chief Magistrate’s Court. The Applicant requested the court to allow one bond with one surety of the same amount. The application is supported by the affidavit of the Applicant. The Applicant states that he had been in remand custody for a period of nine (9) months prior to filing the application.

The Applicant pleaded with the court to exercise its discretion and release him on bail pending his trial because he was ailing, was of the view that the charges brought against him were malicious and fabricated, and that he was entitled to the constitutional right to enjoy his freedom pending his trial.

The application is opposed. PC James Aswani swore an affidavit in opposition to the application. The material part of his affidavit is that the Applicant was initially charged on 15th November 2011 and was released on a cash bail of Kshs.100,000/-. However, the Applicant absconded from court in 2013 and went underground. He was arrested on a warrant of arrest after several years on the run. The investigator was of the view that if the Applicant was released on bail pending trial, he would again abscond and it would not be possible for the Applicant to be traced again. He urged the court to consider the Applicant’s previous conduct in failing to attend court and absconding from the jurisdiction of the court as constituting compelling reasons for this court to deny him bail pending trial.

During the hearing of the application, this court heard oral submission made by Mr. Chesang on behalf of the Applicant and by Ms. Sigei on behalf of the State. This court has carefully considered the facts of this application. In Republic –Vs- Danson Mgunya & Another [2010] eKLR, M.K. Ibrahim J (as he then was) held thus:

“As a matter of fact, all other criteria are parasitic on the omnibus criterion on availability of the accused to stand trial. Arising directly from the omnibus criterion is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the great incentive to jump bail although this is not invariably true. For instance, an accused person charged with capital offence is likely to flee from the jurisdiction of the court than one charged with a misdemeanour, like affray. The distinction between capital or non-capital offence is one way crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the accused absconding. But the above is subject to qualification that there may be less serious offences in which the court may refuse bail, because of its nature.”

Article 49(1)(h) of the Constitution mandates this court to release an accused person on bail pending trial unless compelling reasons are placed before the court. The above cited decision clearly shows that the main consideration in determining whether or not to release an accused person on bail pending trial is whether such accused person will attend court on the scheduled date.

In the present application, the Applicant is facing several charges before several courts. The fact that the Applicant is facing several charges before various courts would not be an important factor for consideration by this court if the Applicant had faithfully attended court. From the affidavit sworn by investigator, it was apparent that the Applicant absconded from court and failed to attend court for a period of more than three (3) years. In the present application, the Applicant did not give explanation why he failed to attend court for the three years that he was absent from court. The contention by the prosecution that the Applicant is a flight risk and is likely to abscond from the jurisdiction of the court is therefore not beyond the realm of possibility. This court agrees with the prosecution that the Applicant will likely fail to attend court if he is released on bail pending trial. His past conduct clearly shows a pattern of behaviour that is inimical to a person who can be trusted to attend court if the court exercises jurisdiction to release him on bail pending trial.

It is clear from the foregoing that the Applicant’s application cannot be allowed. The Applicant must remain in remand custody pending trial before the various courts in the Republic. The order shall only apply to the case where he absconded. The application lacks merit and is hereby dismissed. It is so ordered.

DATED AT NAIROBI THIS 7TH DAY OF DECEMBER 2017

L. KIMARU

JUDGE