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JudgmentHEMEDI SALIM VS The Republic3 min read

HEMEDI SALIM VS The Republic

High Court at Mombasa High Court · · Wendy Micheni


Introduction

  1. This Honourable Court is called to determine the Notice of Motion application dated 13th November, 2024 brought under the premise of Section 362 and 123 of the Criminal Procedure Code by the Applicant who sought the following orders:-
  2. Spent
  3. THAT this Court be pleased to call for the lower Court file namely the Chief Magistrate’s Court file number CR. E 1831 OF 2024, Republic – Versus - Hemedi Salim in exercise of the powers of revision and to consider setting aside the Orders of the Court dated the 4th November 2024 which purported to reject a surety on account of appearance and age.
  4. THAT the costs of this application be provided for.
  5. The Application is supported by the applicant’s affidavit wherein he avers that:-
  6. The Applicant was facing a charge before the CM’s Court and was ordered to find a surety of Kshs.500,000/-.
  7. The Applicant had availed a surety who was his father.
  8. The Court has rejected the surety on account of age even after making the surety to undergo all the procedure including having a restriction placed against his title.
  9. The rejection was unreasonable and unlawful.

Analysis and Determination

  1. I have considered the application affidavit in support and oral arguments by the applicant and the respondent. It is not in doubt that the applicant herein was granted bail/bond pursuant to the requirement of the Constitution (See Article 49). The responsibility of determining suitability of a surety lies with the court. The input of the Police and Prosecution guides the court in reaching an informed decision.
  2. The power of the High Court to exercise revisional jurisdiction over proceedings of the subordinate court is provided for by Statute. Section 362 of the Criminal Procedure Code (CPC) 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.

  1. The law is very clear, revisional jurisdiction is only exercised where the subordinate court grants an order which is incorrect, illegal or irregular. This is a matter where the trial court exercised its discretion in approval of surety. To its mind, the one surety who was availed was not suitable. In the case of “Sanjaysinh Ramrao Charan – Versus -  Dottatray Galabrao Phalka & Another reported in 2015 AIR SCW 784”. The Supreme Court of India observed that;

“14…….Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the revisional Court is not justified in setting aside the order, merely because another view is possible. The revisional court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of Criminal Jurisprudence”

  1. The subordinate court has the discretion to approve a surety that it finds appropriate for purposes of ensuring the accused person attends court whenever required. The reason given for disallowing the quest of the proposed sureties to take up the responsibilities by undertaking to ensure the accused’s attendance in court as required are captured by the application. There is nothing irregular, illegal, incorrect or improper that would call for revision. The one presented was too frail and he may not be able to give a proper account should the accused person abscond.
  2. The Applicant may look for another surety or seek revision of the bond terms before the trial court.
  3. It is worth noting that revisional powers are exercised sparingly to prevent abuse of court process. The supervision of the subordinate by the High Court should not be marked with extreme excessiveness.

Conclusion and Disposition

  1. From the foregoing, I find the Notice of Motion application dated 13th November, 2024 lacking merit. Accordingly it is dismissed.

IT IS SO ORDERED ACORDINGLY.

RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS …….27th…………DAY OF …………February……………..…….., 2025

……………………………………………………..

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. Cherop……………State Counsel;

………………………………………….…Applicant

    HEMEDI SALIM VS The Republic HEMEDI SALIM VS The Republic