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JudgmentGabriel Nyamawi VS The Republic14 min read

Gabriel Nyamawi VS The Republic

High Court at Mombasa High Court · · Andayi W.F.

R U L I N G

  1. The application herein dated 25/9/2024 is for an order for review of the bond terms fixed by the trial court for the applicants. The six applicants are Gabriel Nyamawi who has the authority of the others Fidelis Lur, Ruwa Karisa, Brian alias three two Ngombo, Dennis Nduga, Michael alias Welawela Khamisi, Owen Njoki and Omar Chigunda. The applicants’ prayers are first that in the interest of justice they be released on preferably lower bail terms of KShs 10,000/= per person which they had deposited with the court. Secondly that two secondary school-going students Amin Mgaza Ngereza and Rashid Nassir be released on personal bond and third, any other order the court deems fit in the interest of justice.
  2. The application is indicated to be brought under sections 1A, 1B(a) and 3A, Order 45 Rule 1 and 2, Order 51 of the Civil Procedure Rules (Cap. 21) (CPR) Laws of Kenya and any other enabling provisions of the law. I do not understand the propriety of filing an application in a criminal matter under the CPR but that being a procedural technicality, it will not hamper the court from considering the merits thereof.
  3. The grounds in support of the application are laid on the face thereof and are expounded in the supporting affidavit of Gabriel Nyamawi sworn on 25/9/2024 where he has set out what he states to be the genesis of their being unable to get out of custody in spite of being granted bond/bail by the trial court.
  4. It is that on the 8th August 2024, several people were arrested and charged with assault causing actual bodily harm before the Shanzu Magistrates Courts. There are a total of 15 accused persons in that case. They all pleaded not guilty to some three counts which this court is not in a position to confirm what they relate to since the copies of charge sheet have not been made available to this court either by the applicants or from those supplied by the trial court. All the accused persons in the trial court were granted cash bail of Kshs.10,000/= each and the case given a mention date of 6th September 2024. Each of them secured the cash bail terms and was released from custody.
  5. When they turned up for mention on the appointed date the charges were substituted with robbery with violence. Nyamawi deposes that even then no documentation was issued to enable them understand the basis of the offences.
  6. The record shows that each of the accused persons pleaded not guilty to the three new charges. Again, a copy of the charges is not available to this court to peruse. Upon pleading not guilty, the learned prosecution counsel asked the court to vary the bond terms in view of the substituted charges which she said were more serious. The learned trial magistrate then immediately reviewed the bond terms providing that each accused to be released on bond of KSh. 100,000/= with a similar surety or cash bail of KSh. 50,000/= but no security needed for the said surety on cash bail. The court further provided that the surety on cash bail to be examined by court as the case was one of robbery with violence. The court went further and explained that the bond terms had been adjusted due to the nature of the consolidated charges. It also directed that the accused persons who were out on cash bail to comply with the new bond terms. The trial court also noted that some of the accused persons were facing other charges in Criminal Case No. E649 of 2024 besides the one where the charges were substituted with robbery with violence in Criminal Case No. E689 of 2024.
  7. The accused persons then informed the court that they had an advocate who was not present in court at the time of the substitution and fresh plea taking.
  8. Nyamawi deposes that they have been unable to secure the funds for their release from custody on bond/bail because they come from poor families. The trial court record shows that a number of the accused persons were able to secure their release on bond but the applicants remain in custody.
  9. However, on 13th September, 2024 when applicants appeared for mention, some of them were slapped with another set of charges of arson contrary to section 332(a) of the Penal Code in Criminal Case No. E795 of 2024 and thus were sent back to remand awaiting pre-bail reports. I have seen copies of proceedings in that file where eight accused persons took plea. They all pleaded not guilty. The copy of the charge sheet is however not provided to this court and so this court is unable to know who of the accused persons in that case are applicants herein since the present application relates to the two Criminal cases Nos E689 of 2024 and E795 of 2024.
  10. Unfortunately, the applicants have not annexed to their application copies of any of the charges facing them. The same were also not part of the copies of proceedings made available to this court from the trial court. However, since the State has not discounted this position, I will take it as it is, that the applicants face charges of robbery with violence and arson in separate cases.
  11. The trial court called for a bail report in Criminal Case No. E795 of 2024 and fixed a mention date of 4/10/2024. The applicants filed the present application herein on 27/9/2024. The proceedings show that when the matter came up on 4/10/2024, before the trial court, it simply indicated that the bail report was noted and fixed bond terms for each accused person at KShs 500,000/= with one surety of a like sum or KShs 200,000/= cash bail. No doubt, the accused persons/applicants herein are still in custody since they were unable to raise the earlier bond terms of KSh. 100,000/= with one surety of a like sum or KShs 50,000/= cash bail with one surety but without further security for the robbery with violence charges in Criminal Case N. E689 of 2024.
  12. Nyamawi deposes further that one of the applicants herein Brian Amani is in dire need of medical attention as he for one reason had sustained serious burns on his body and was not receiving the requisite medical attention while in custody. He has annexed to the supporting affidavit copies of photographs of the alleged applicant showing the burns as well as a discharge summary from Kilifi County Hospital dated 4/9/2024 having been admitted on 1/8/2024 having sustained 18% 2nd degree burns. He further deposes that two of the applicants Amin Mgaza Gereza and Rashid Nassir are school going children. He has annexed to his supporting affidavit copies of a letter from Mtwapa secondary school dated 9/9/2024 showing that they are in form two and one respectively. 
  13. Nyamawi further deposes that there were neither statements, correspondence, investigation diary nor any other document accompanying those charges save for the averments in the charge sheet. That they were taken from the remand prison at Shimo La Tewa Prisons to be charged at Shanzu Law Courts yet they had not secured adequate funds for their release on the previous charge. 
  14. He deposes further that the case emanates from a land matter which is before the Environment and Land Court in Malindi, Stephen Kahindi Gambo vs Ministry of Lands – ELC Case No. 20 of 2023.  The matter is before Hon. Makori, and the Complainant in Criminal Case No. E791 of 2024 is the Defendant in the above-mentioned case. 
  15. He deposes further that he together with his colleagues are law abiding citizens who have never been convicted and do not have any prior record of criminal tendencies.  They hail from Maweni, Mtwapa within Kilifi County in the Republic of Kenya as their native home and they are not at all a flight risk. That they are suffering persecution from the State and rich persons hellbent on grabbing their ancestral land. 
  16. Nyamawi deposes further that some of the parents of some of the accused persons have been charged in other cases including MCCR E696 of 2024 and MCCR/E894/23.  They have been paying bond terms for the other members of their families and they have exhausted their financial capacities to issue any other cash bail. They have sought the support of Kituo Cha Sheria to assist them to access justice without paying legal fees which has become very expensive for their families and the community at hand. 
  17. It is therefore their prayer that the Kshs. 10,000 each of them paid for the offence of assault be maintained as the bond terms for the accused persons in all the cases.  
  18. He deposes further that they had reported several cases at Mtwapa Police Station relating to assault, murder and harassment against the same complainants in the cases facing them but there seems to be no urgency in handling them, instead, they are the ones being persecuted. The cases are:
    1. OB 62/3/5/2024 – of assault is still being assessed at the office of Director of Public Prosecution since May, 2024. 
    2. The case of the murder of Hassan where the accused persons are part of these complainants – they were denied opportunity to report.
    3. OB Numbers: 75/8/7/2024 and 49/30/1/2024 are yet to be processed, even though they are ready to provide statements. 
  19. Besides the application and the submissions by learned counsels for the parties, this court called for the proceedings from the trial court and the same were made available through the court CTS system, albeit after a long period of seeking for them,.
  20. This application proceeded on written submissions. Learned counsel for the applicants Mr. Adika basically reiterated the depositions by Mr. Nyamawi that the applicants had been unable to raise the bond/bail terms fixed for them.
  21. Learned counsel for the prosecution Mr. Ngiri submitted that although the State had no objection to the application in principal, matters of bond are better left to the discretion of the trial court. He also submitted that he sympathized with the cases of the applicant who was sick in custody from the burns and also the school going students. He therefore let this court exercise its discretion in the matter.
  22. I have considered the application and the submissions by learned counsels for the applicants and the respondent. The issue for determination is whether or not this court should review the bond terms set for the applicants by the trial court.
  23. There are several Constitutional and statutory provisions which underpin an accused person’s right to be released on bail or bond. Article 49 1(h) of the Constitution guarantees an accused person the right to be released on bail unless there are compelling reasons for bail to be denied. These compelling reasons have to be provided by the State. Article 50(2) of the Constitution on the other hand provides for the rights of an accused person to a fair hearing whose components are inter alia the right to be presumed innocent until proven guilty.
  24. In the present case, the applicants and their co-accused persons were granted bond and cash bail terms by the trial court. I have perused the trial court record and I note that some of the accused persons managed to get a surety for the bond terms or to pay the cash bail granted and were released from custody. The applicant are still in custody. That makes it apparent that their remaining in custody to-date means that they have been unable to raise the bond and bail terms fixed by the court.
  25. The constitutional provisions cited above with respect to bail are given statutory effect in section 123 and 123A of the Criminal Procedure Code (Cap. 75) Laws of Kenya.  As is relevant to this application, Section 123 provides that:

(1)   …

(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. The law has not defined what excessive bail amount is but the same can be considered on a case by case basis.  In the Bail and Bond Policy Guidelines produced by the National Council on the Administration of Justice Guideline 4.36 provides that “Courts shall inform accused persons of their rights to apply for review of bail decisions and conditions. Bail decisions and conditions should be reviewed on a regular basis, as the circumstances of the accused person and the case change.” Where the trial court has failed to review the bond and bail terms, as provided for under section 123 CPC and the Bail and Bond Policy Guidelines, the accused person has statutory recourse to this court.
  2. Courts have reiterated time and again that the primary purpose of bail is to secure the accused person’s attendance at court to answer the charge at the specified time. (See the case of Ng’ang’a v Republic (1985) eKLR.). The High Court, Lesiit, J in Joses Kimathi Murumua & 3 Others v Republic [2013] eKLR, upon considering the Ng’ang’a v Republic case (supra) observed that:

“…The learned trial magistrate, in exercise of discretion whether or not to grant bail to all the accused person jointly charged in this case, would have been perfectly justified to give varying bond terms to the accused persons depending with the merits, circumstances of their case and the factors unique to each of them. The learned trial court is mandated to consider the bond application by each accused person and to examine each accused person, based on the peculiar facts of each accused person, and the circumstances pertaining to their respective case and also the merits of the application. Having done so, the trial court would then be expected to determine which of the accused person qualify to be granted bond, and which ought not to and give reasons for each decision. To give an example a court would be in order to give a child bond and deny an adult based on the age and unique circumstances of each accused.” 

  1. This decision is a good guide to the learned trial magistrate to understand that in case he felt shackled by the earlier bond terms granted and which some of the accused persons were able to meet and were released but the others remained in custody, it is in order for him to consider the individual circumstances of each accused person.
  2. In yet another decision in Andrew Young Otieno v Republic [2017] eKLR, Kimaru J said as follows with regard to review of bond terms for an accused person:

“This court agrees with the Applicant that the purpose of imposing bond terms is to secure the attendance of the accused before the court during trial. The terms imposed by the trial court should not be such that it amounts to denial of the constitutional right of the accused to be released on bail pending trial. The trial court must consider the circumstances of each accused when determining the bond terms to be imposed. In the present application, it was clear to this court that the Applicant was unable to raise the bond terms imposed by the trial magistrate. He has been in remand custody for a period of over two years.” 

  1. In the present case, there are clear circumstances to warrant differential treatment for the accused persons. One of them is seriously sick and needs immediate medical attention while two are students in High School which requires them to attend classes. It does not mean that any of these circumstances exonerates them from undergoing full trial. However, it is a special circumstance calling for closer examination and setting of bond/bail terms that are reasonably affordable to them.
  2. In saying so I do not loss sight of the fact that the charges facing some of the applicants are very serious and carrying very severe punishments on conviction. I also note that the cases involve conflicts over land which are usually very emotive and there are already allegations of murder. Even then, the applicants are innocent until proven guilty. The State has not challenged their assertion that they are not a flight risk.
  3. Furthermore, the Bond and Bail Policy Guidelines provide under Guideline 4.26(c)(c) provides that where the accused person has been granted bail but fails to meet bail terms and seeks review of those terms the court should call for a bail report to assist it on the appropriate terms to grant. It is not clear to me what the bail reports in respect of each of the applicants said as the same were not part of the documents supplied from the trial court, and how upon relying on the same, the learned trial magistrate imposed uniform bond/bail terms in spite of the disparities in the circumstances of the applicants. 
  4. In the premises, I find that the application herein has merit and in terms of section 123(3) CPC this court reviews the bond terms set for Brian Amani, Amin Mgaza Gereza and Rashid Nassir by the trial court to personal bonds of KShs 200,000/= each with one surety who will be examined by the court without depositing security for the same. The release of these three should be secured immediately upon the Deputy Registrar examining their respective sureties.
  5. For the rest of the applicants, their bond terms are reviewed to KShs 100,000/= with one surety of a like sum or cash bail of KShs 30,000/= for each accused person with an additional surety who shall not deposit security but will be examined by the court. However, the trial court is at liberty to consider reviewing the bond/bail terms from time to time as circumstances permit or upon calling for fresh bail reports.
  6. For clarity, the single bond/bail terms to apply in all the cases emanating from the same issues and facing the applicants and pending at the Shanzu Magistrates Courts. This has to be made clear to the surety that he or she is standing in so many cases facing an accused person at the court.
  7. In addition, each of the accused persons is required to keep the peace with the complainants and where there is any issue relating to the alleged conflict over the land, the same to be reported to any police station of their choice within the Kilifi or Mombasa Counties. Failure to abide by this term will amount to a breach of the bond terms and may lead to cancellation of the bond/bail terms herein.
  8. Orders accordingly. 

Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 18th day of October 2024

In the presence of: -

Adika for the applicants

Mwaura (MS) h/b for Ngiri for the respondent

Etropia - Court Assistant


    Gabriel Nyamawi VS The Republic Gabriel Nyamawi VS The Republic