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JudgmentCHARLES ONYIEGO VS The Republic6 min read

CHARLES ONYIEGO VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


(ORIGINATING FROM SEXUAL OFFENCES CASE NUMBER E056 OF 2023 IN THE CHIEF MAGISTRATE’S COURT AT SHANZU)


Introduction

  1. This Honourable Court is called to determine the undated Notice of Motion application  brought under the dint of Article 49 (1) (h), Article 50 and Article 159 of the Constitution of Kenya, 2010 by the Applicant who was charged with the offence of incent contrary to Section 20(1) of the Sexual Offences Act No. 3 of 2006.
  2. The Applicant sought the following orders:-
  3. Spent
  4. Spent
  5. THAT pending the hearing and determination of this application, the Honourable court be pleased to admit the applicant to bond/bail on terms to be specified by the court.
  6. THAT the Honourable court be pleased to issue an order reinstating the applicant's bond terms Sexual Offence Case E056/2023 or any appropriate bond terms as the court may deem fit.
  7. THAT the Honourable Court be pleased to grant any further orders as it deems fit.
  8. The Application is supported by the applicant’s affidavit wherein he avers that:-
  9. The Applicant is an accused person in Sexual Offense Case No. E056 of 2023 before the Shanzu Law Courts.
  10. The applicant has been in custody since his arrest, sometime in May, 2023.
  11. The applicant had new bond terms set for him until the 9th of February, 2024 through a ruling by Hon. Mbogo.
  12. After the bond was set, the Applicant went back to remand in the hope that his family would be able to meet the bond terms set at Kshs. 500,000/-.
  13. On the 30th April, 2024, the applicant/accused person was presented before Hon. Mbogo for the hearing. After the said hearing, the court informed the accused person and advocate on record that the set bond terms had been cancelled.
  14. The move leading to cancellation of the bond was not done in the presence of the accused person nor his advocate. Essentially the accused was not granted any right to a fair hearing before cancellation of his bond terms.
  15. HE arged that the  learned magistrate erred in fact and law by cancelling bond while the accused person was still in custody, without calling the accused person  nor his advocate and advancing the reasons for the possible cancellation before proceeding to finally cancel the same.
  16. That he has so far suffered a grave injustice before the Honourable courts in that he has never been granted a shot at bail, and when that chance came, the said bond terms were cancelled unbeknown to him and without a proper hearing yet he was in custody and available for summoning by the court.

Analysis and Determination

  1. Having considered the application I find that the matter herein relates to bail and/or bond and in determining whether to grant an accused person bail/bond terms the court is guided by inter alia, Article 49 (1) (h) of the Constitution that states that: -

“ An arrested person has the right—

“(h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released”

  1. In addition Article 50 (2) (a) of the Constitution 2010, stipulates that every person is presumed to be innocent unless otherwise proved and states as follows:-

“ (2) Every accused person has the right to a fair trial, which includes the right—

  1. to be presumed innocent until the contrary is proved.”
  2. In the same way, section 123 of the Criminal Procedure Code empowers the court to admit an accused person to bond or bail on reasonable terms and states as follows: -

“(1)When a person, other than a person accused of murder, treason, robbery with violence, attempted robbery with violence and any related offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of that officer or at any stage of the proceedings before that court to give bail, that person may be admitted to bail:

Provided that the officer or court may, instead of taking bail from the person, release him on his executing a bond without sureties for his appearance as provided hereafter in this Part.(2)The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.(3)The High Court may in any case direct that an accused person be admitted to bail or that bail required by a subordinate court or police officer be reduced”.

  1. Pursuant to the aforesaid, section 123A provides that: -

“(1)Subject to Article 49(1)(h) of the Constitution and notwithstanding section 123, in making a decision on bail and bond, the Court shall have regard to all the relevant circumstances and in particular—

(a)the nature or seriousness of the offence;

(b)the character, antecedents, associations and community ties of the accused person;

(c)the defendant's record in respect of the fulfilment of obligations under previous grants of bail; and;

(d)the strength of the evidence of his having committed the offence;

(2)A person who is arrested or charged with any offence shall be granted bail unless the court is satisfied that the person—

(a)has previously been granted bail and has failed to surrender to custody and that if released on bail (whether or not subject to conditions) it is likely that he would fail to surrender to custody;

(b)should be kept in custody for his own protection”.

  1. Finally, Paragraph 4.9 of the Kenya Bail and Bond Policy Judiciary Guidelines, provide the factors to be considered by the court when deciding with whether to grant or deny bail/bond and which includes: -
    1. The nature of the charge or offence and the seriousness of the punishment to be meted if the accused person is found guilty.
    2. The strength of the prosecution case
    3. Character and antecedents of the accused person.
    4. The failure of the accused person to observe bail or bond terms
    5. Likelihood of interfering with witnesses.
    6. The need to protect the victim or victims of the crime from the accused person.
    7. The relationship between the accused person and potential witnesses.
    8. Child offenders. where the accused person is a minor, the denial of bail or bond is considered not to be in the best interests of the accused person, who is a minor.
    9. The accused person is a flight risk.
    10. Whether accused person is gainfully employed.
    11. Public order, peace or security. whether the release of an accused person will disturb public order or undermine public peace or security.
    12. Protection of the accused person. whether pre-trial detention is necessary to protect the accused person
  2. Section 362 of the Criminal Procedure Code which has been invoked by the Applicant empowers this court to 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 or order recorded and the regularity of any proceedings of any such subordinate court. The actions that this court can take when exercising its revisionary jurisdiction is provided for under Section 364 of the Criminal Procedure Code.
  3. Pursuant to the aforesaid legal principles I have considered the application in light of the same and I note from the record of the trial court that when the applicant was arraigned in court, he was granted bond as envisaged under Article 49 and 50 of the Constitution 2010, and the other statutory and/or legal authorities quoted herein. The Applicant was admitted to a bond of Kshs 500,000/- with one surety.
  4. I have examined the record of the trial court after 19th March, 2024 when the Applicant had been absent for some previous court attendances the Court cancelled his bond terms. His advocate explained the absence was due to illness.   This ought to have been taken into account especially as the Applicant did avail themselves which is indicative of their intention to comply with the bond term,.The upshot is that the undated Notice of Motion application is merited.

Conclusion and Disposition

  1. Accordingly, I hereby set aside the order of the trial court made on 30th April, 2024 and reinstate the bond terms granted earlier .   as a precautionally measure the Applicant should also avail another contact person who should deposit his photograph, copy of identity card and telephone contacts. The Applicant is also  cautioned not to make contact, whether direct or indirect, in person or through other persons, with the witnesses in the case before the trial court.  If any such contact is made and verified, the bond terms shall be cancelled immediately.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS ……19th.…………DAY OF ………December ………………..…….., 2024

……………………………………………………..

HON. LADY JUSTICE W. M. KAGENDO

(JUDGE)

HIGH COURT OF KENYA AT MOMBASA

(CRIMINAL DIVISION)

In the presence of:

M/s. Bebora, Court Assistant;

……………Ms. Maina……………State Counsel;

………………………………………….…Applicant

    CHARLES ONYIEGO VS The Republic CHARLES ONYIEGO VS The Republic