JESAL GANATRA VS ODPP JESAL GANATRA VS ODPP

The application herein by way of a letter dated 17/10/2024 approached this court requesting this court’s exercise of its powers of revision under Article 165(6) and (7) of the Constitution as read with section 362 to 365 of the Criminal Procedure Code (Cap. 75) Laws of Kenya to call for the record in Mombasa Magistrates Criminal Case No. E1248 of 2024 Republic v. Jesal Ganatra for the court to satisfy itself on the correctness, legality, propriety and regularity of the ruling on bond delivered by the trial court on 15/7/2024.
The request is based on grounds that:
1. the applicant has been in custody since 15/7/2024;
2. the trial court granted the applicant bond of KShs 1,000,000/= with no option of cash bail;
3. the bond terms granted are so high that the accused person is unable to meet them;
4. the terms are tantamount to denial of bond;
5. the applicant has dependents who have been left miserable;
6. the applicant undertakes to abide by the conditions set by the court;
7. in the larger interest of justice, this court should grant the orders sought.
This matter was before Hon. Lady Justice Wendy Micheni who is currently away on other duties and then leave until 25/11/2024 when she resumes. She had fixed the matter for mention 5/12/2024. On 6/11/2024 the learned advocate for the applicant requested through a certificate of urgency filed on the same date that the file be placed before the duty court for consideration on a nearer hearing date. This court sought the directions of Hon. Lady Justice Wendy Micheni who agreed that this court could proceed to consider the application.
The Court is not obliged to hear the parties on an application for revision (see the case of Joseph Nduvi Mbuvi v Republic [2019] KEHC 9895 (KLR)) but this court gave the parties the opportunity to make oral submissions which learned counsels for the applicant and the respondent did.
Mr. Paul Magolo, learned counsel for the applicant has submitted on the applicant’s constitutional right to be released on bond pending trial under Article 49(1)(h), right to be presumed innocent until the contrary is proved under Article 50(2)(a). He submits that the terms of bond for the applicant set by the trial court amount to a denial of bond as they are excessive and he is unable to afford them and that is why he is still in custody to-date despite his presumption of innocence.
Learned counsel reiterates that the purpose of bond is to secure the attendance of an accused person at trial and not to punish him by way of pre-trial detention through high bond terms.
The learned counsel for the respondent Mr. Ngiri made submissions opposing the application. He submits that the trial court having made a decision on bond and set the terms thereof, the applicant ought to approach this court through an appeal and not revision application. Learned counsel submits that the trial court considered the seriousness of the charge and the amount of money allegedly stolen being almost KShs 4.5 million. He submits that the bond terms are commensurate to the charge.
Learned counsel further submits that the applicant ought first to have applied for a review of the bond terms before the trial court before proceeding here for revision.
Learned counsel also submits that the counsel for the complainant ought to have been served with this application in order to give the victim a chance to participate in the proceedings.
The Respondent submits that the application does not meet the threshold of section 362 CPC and the same is premature and it should be dismissed.
In a rejoinder learned counsel for the applicant reiterated that the amount allegedly stolen as indicated in the charge sheet should not be guiding factor in fixing the bond terms as the right to be released on bond is a constitutional right. He cites the case of Ramadhan Iddi Ramadhan & 5 others v Republic [2019] eKLR where the High Court stated that the assigned value of the property in dispute, in this case, the alleged stolen money, should not be used as a yardstick for the seriousness of the offence.
Learned counsel further submitted that the victim is well represented by the State in this application.
I have considered the application, the grounds in support thereof and the submissions by learned counsels. The issue for determination is whether or not this court should exercise the revisionary powers to review the bond terms set for the applicant by the trial court downwards.
There is no dispute that the setting of bond terms is at the discretion of the trial court.
Article 165(6) and (7) of the constitution under which this application is brought provides as follows:

(6). The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.

(7). For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice.

In furtherance of the constitutional edict, section 362 CPC enables the High 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, sentence, or order recorded or passed, and as to the regularity of any proceedings of such subordinate court.”

Section 364 CPC further provides for the powers of the High Court on revision thus:

(1) In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—

(a) in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;

(b) in the case of any other order other than an order of acquittal, alter or reverse the order.

(c) …

Learned counsel for the Respondent has made submissions on the propriety of the applicant challenging the decision of the trial court by way of revision rather than by way of appeal.
Suffice it to say that the revisionary jurisdiction, of the High Court under section 362 CPC is different from the appellate jurisdiction under section 347 CPC. In any case, section 347 CPC that provides for appeals to the High Court from Magistrates Courts is only on conviction and not interlocutory issues such as review of bond. Review of bond is provided for under section 123(3) CPC and there being no procedure provided for the same, an application by way of revision should suffice. Under the revisionary jurisdiction what the court is called upon is to satisfy itself that a finding, order or sentence made by the subordinate court is correct, legal and proper and that the proceedings are or were regular.
The applicant is charged in Mombasa Magistrates Court Criminal Case No. E1248 of 2024 on a charge of stealing contrary to section 268(1) as read with section 275 of the Penal Code (Cap. 63) Laws of Kenya (PC) that on diverse dates between 22/9/2023 and 28/5/2024 at Ramageco (K) Ltd Mombasa branch in Mombasa CBD, within Mombasa County being the branch manager of Ramageco (K) Ltd, stole KShs 4,035,340/= the property of Ramageco (K) Ltd, which came into his possession by virtue of his employment.
The trial court record shows that the accused person took plea on 15/7/2024 after which the advocate for the accused person informed the court that he is a law abiding citzen and had been cooperative with the investigators. That he is not a flight risk as his passport was at Gigiri police station. That he is a family man and was working at Smart Motors and that shows that he can attend court. Learned counsel asked for reasonable bond terms for the applicant and suggested cash bail of KShs 100,000/=. The court prosecutor said they had no objection to reasonable bond terms. The advocate for the complainant then said that the wife and child of the applicant were both in the UK. He then asked that the passport of the applicant be deposited in court. The advocate for the accused person responded that the wife and the child were on holiday and they usually come to Kenya. The court then set the bond terms at KShs 1,000,000/= with one surety of a like sum and one contact person. It also directed that the issue of the passport be dealt with by the trial court. The file was then allocated for hearing before the current trial court.
When the matter came up for pre-trial on 29/7/2024 before the trial court, the prosecution counsel submitted that in addition to the bond terms fixed earlier, the accused person be ordered to deposit his passport in court as he was a flight risk as his family is based in the UK. He also prayed that the investigating officer was present and could explain further.
The accused person’s advocate is not indicated to have been in court at the time as the accused spoke in person. The complainant’s advocate was present.
The accused person then said that he was requesting for bond reduction so that he could afford it. He also denied that he was a flight risk and said that he had initially been out on police bond which was extended. He also said that he wished to initiate negotiations for an out of court settlement.
Learned counsel for the complainant informed the court that they were not opposed to out of court negotiations though they had tried the same before coming to court.
The court then made directions that the accused person to deposit his passport in court before bond is processed. The court also directed the parties to initiate out of court settlement negotiations. The court did not however touch on the request by the accused person for bond review.
The case came up for mention for pre-trial directions next on 14/8/2024 and once again the accused person requested for bond review. Again, the court gave no ruling or directions such as requesting for a bail report upon that request, it being apparent that the accused person was unable to meet the earlier bond terms fixed. On the subsequent dates for mention, the accused person did not repeat his applications for bond review and neither did the court touch on them.
It is apparent from record of the trial court as laid out above that the applicant did request for bond review several times but the learned trial magistrate did not give the issue any attention. The court only acceded to the prosecution’s request that the applicant’s passport be deposited in court because he was a flight risk. This was done even without any sworn evidence from the investigating officer to substantiate the claim. A mere allegation that an accused person’s family stays outside the country cannot be reason to make orders adverse to him. This is in spite of the fact that the cort was directing the accused person to enter into negotiations with the complainant to settle the matter out of court. I would have thought that in those circumstances, the court would make it easy for the accused person to do so by at least giving directions on his pleas for bond reduction. Otherwise, how was he expected to engage in out of court negotiations for settlement when he was in custody. Was the complainant, a company, expected to appear in prison to do that?
Learned counsel for the Respondent submits that the complainant has not been given an opportunity to present his views on the application by the applicant to have his bond terms reviewed. It is not clear why learned counsel for the complainant did not attend court to participate in the proceedings. But even then, I note that on all the occasions the matter came for mention before the trial court and the applicant made requests for review of bond and learned counsel for the applicant was present, he never raised objection to the same. He also said that the complainant was agreeable to negotiations for an out of court settlement, which could only properly be had when the applicant is out on bond. I therefore find that the complainant would have no objection to the request for review of bond terms and I do not think just because the request is being made before the High Court, it would have a change of mind.
In any case, learned counsel for the complainant having been mapped on the court’s case tracking system (CTS) or e-filing for litigants, should be aware of these proceedings, including the applications filed by the applicant. Therefore, he should have attended in order to present the complainant’s views.
Constitutional and statutory provisions 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.
In the present case, the applicant was granted bond by the plea court. However, he has remained in custody to-date. That makes it apparent that he is unable to raise the bond terms fixed by the court. I find the applicant’s plea herein that the trial court has declined to grant his request for review of the bond and bail terms without offering any reason whatsoever to have merit.
I have pointed out the various occasions when he requested the trial court for reduction of bond terms and the court made no comment on that application.
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.

The law has not defined what excessive bail amount is but the same can be considered on a case by case basis. In the cited case of Ramadhan Iddi Ramadhan & 5 others v Republic [2019] eKLR the High Court made reference to the United States case of Stack v Boyle U.S. 1.3.1951 in the Supreme Court of the United States of America where in defining what excessive bail terms means and which I find applicable in our jurisdiction:

“the court provided guidelines in assessing “whether bail is excessive starting from the premise that the traditional right to Freedom before conviction permits the unhampered preparations of a defence and serves to prevent the infliction of punishment prior to conviction. The court defined excessive as: Bail set at a figure higher than an amount reasonably calculated to assure the presence of the accused. Significantly, the court tied the question of whether a bail determination is excessive to the purpose of bail. As the court explained, the purpose of bail is to help assure the presence of the defendant at subsequent proceedings. Since the freedom of bail is limited, the filing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant.”

In this case, the continued stay of the applicant in custody can only be explained on account of excessive bond terms set for him by the plea court and which the trial court has severally failed to review in spite of applications by the applicant.
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.
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.).
In the case of 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.”

I am persuaded to follow the foregoing decisions and find that the learned trial magistrate fell in error in failing to review the bond terms for the applicant who remains in custody because he is unable to meet the bond terms set.
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. The learned trial magistrate has not made use of this option.
In the premises, I find that the application herein has merit. In terms of section 123(3) CPC, the Bond and Bail Policy Guidelines and in furtherance of the Hon. the Chief Justice’s directions on decongestion of prisons dated 19/8/2024, this court reviews the bond terms set for the accused person by the trial court to KShs 300,000/= with one surety of a like sum or cash bail of KShs 100,000/= with one contact person. The contact person need not deposit any security in court but shall only appear to be examined and to be informed of his or her duty by the Deputy Registrar. Where the applicant presents a surety, the Deputy Registrar of this Court will proceed to examine the said surety for suitability to secure the attendance of the applicant at trial. Considering the time the applicant has remained in custody, verification of the documents for authenticity shall be done within 3 days of presentation failure to which the same shall be done after the approval of the surety. The passport shall continue to be deposited in court as earlier directed by the trial court. If the same has not been deposited, the applicant shall be given 3 days from the date of his release to deposit the same.
Orders accordingly.

Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 14^th day of November 2024

HON. ANDAYI W. F.

JUDGE

In the presence of: -

Magolo for the applicant

Ngiri for the respondent

Etropia - Court Assistant