Arising from the Orders issued on 6/11/2024 and 11/11/2024 MOMBASA MCSO E47/2021 REPUBIC -VS- JOHN VINCENT ODINGA (Hon. D.Odhiambo PM)
There are two applications in this matter:
The first one is dated 13th November 2024 and is brought under Article 19 ,20, 21, 22(1), 23(1), 25(q, c),29, 47, 48, 50 (1) AND 165 (3), (6) and (7) of the Constitution of Kenya, 2010, sections 131 ,132, 362, 364 and 365 of the Criminal Procedure Code, inherent powers of the Court and all other enabling provisions)
The application seeks the following Orders that:
a) This application be certified as urgent and be dispensed with in the first instance.
b) This Honourable Court be pleased to call for and examine the proceedings before the Magistrates’ Court in MOMBASA MCSO E47/2021 REPUBIC -VS- JOHN VINCENT ODINGA, to be removed and brought to the High Court for purposes of ascertaining the legality, correctness and or propriety of the trial court’s orders issued on 6/11/2024 and 11/11/2024, LOCKING UP and continuing the detention of the Applicant.
c) The Honourable Court be pleased to order the immediate unconditional release of the Applicant from Remand on reasonable terms or conditions as the court deems fit pending the hearing and determinant of this application inter partes.
d) This Honourable Court do exercise its authority and discretion in revising the subordinate court’s unfair conviction and continued detention of the applicant for a further 14-day period.
e) This Honorable Court be pleased to bring to this Honorable Court for purposes of quashing the subordinate court orders issued on 6 th November, 2024 and on 11th November, 2024 respectively in criminal case The applicant is therefore apprehensive of the losses and damages suffered and continues to live in anxiety and fear of other impending losses.
s) Nevertheless, the applicant is desirous and willing to pay into court a reasonable sum as the applicant’s bond, to suffice as security and have possession of the motor vehicle handed back to the applicant to have it resume performing its normal commercial functions.
t) The applicant has made an application for placement of a caveat on the motor vehicle, prohibiting transfer of ownership to a third party before determination of this application and only awaits registration by the National Safety & Transport Authority.
u) If this honourable Court doesn’t intervene, the applicant stands to continue suffering irreparable harm.
v) The respondent lacks any interest in the said motor vehicle and shall not suffer prejudice if the orders sought herein are granted.
w) The applicant will be greatly prejudiced if the orders sought are denied.
x) It is in the interest of justice that the orders sought herein are allowed.
f) Costs of this application be provided for.
THE APPLICATION is premised on the following grounds and supporting affidavit of ONDENG RAYMOND ONYANGO.
That:
1. On 6th November, 2024 and 11th November,2024 the subordinate court in criminal case MOMBASA MCSO E047/2021 REPUBIC - VS- JOHN VINCENT ODINGA, issued orders locking up in remand the Applicant, as punishment for the failing to perform his duties as a Surety in the said case and also alleged perjury.
2. They subordinate court sentenced and locked up the Applicant for five days and a further two weeks period with the possibility of serving a six months sentence vide instalments of two weeks until conclusion, at the Regional Remand prison otherwise known as Jela Baridi.
3. That the trial court thereafter scheduled the matter for mention on 26 th November, 2024 for purposes of extending the said two weeks sentences.
4. Nevertheless, the Applicant herein agreed to become and be registered as the Surety in the above said matter after the trial court released the accused person on bond pending hearing and determination of the suit and the applicant surrendered the original copy of log book of his Motor Vehicle registration Number KAL 353M as security thereof.
5. The Applicant herein complied and fulfilled his obligations by ensuring the accused person attended court religiously without failure until the 6th November, 2024 when the accused person was absent in court when the matter came up for judgment.
6. The said accused person was absent in court without any plausible reason however, the surety was in court as usual and when the court called upon the Applicant to explain the basis for accused person’s absence the trial court disagreed with reasons given and irrationally locked up the Applicant in remand on the said date for failing to avail the accused person in court without a valid reason.
7. The court denied the Applicant a chance to fulfil his duty to search for the accused person and produce him before court and unfairly and irrationally locked up the Applicant up for five(5) days till the 11th November, 2024 when the matter was scheduled for directions.
8. On the said date, the subordinate dismissed the Applicant’s application for revision of its orders to grant the applicant time to produce the accused person and further accused, sentenced and locked him up in remand for a period of two weeks, for alleged perjury involving misleading the court over his relationship/correlation with the said Accused person.
9. The said orders and sentence were however issued irregularly and contrary to statutory provisions which urge that a surety has to be first granted a chance to apprehend and avail an accused person in court before being ordered to show cause why punishment should not ensure against him for failing to perform his duties.
10. The trial court also detained the Applicant without proceeding under the relevant provisions and principles of natural justice and recommend that the applicant be charged with perjury if he is accused of committing the alleged crime.
11. The subordinate court has ordered that the Applicant remains in detention for fourteen (14) days up to the 29th November, 2024 despite knowing that the applicant deserves a chance to trace and avail a missing accused person in court before a prejudicial action is taken against him for failure to fulfil his duties.
12. The prosecution didn’t also argue, oppose or give any cogent reasons to justify the denial of the Applicant’s application for a chance to avail the accused person in court. The Prosecution left it to the subordinate court to accuse, prosecute and convict the Applicant unfairly however, despite all these, the trial court still unfairly and irregularly put the Applicant to detention.
13. The rights and duties of the Applicants as envisaged by the Constitution of Kenya and Criminal Procedure Code are currently being infringed and curtailed respectively. The Applicant has been in detention for eight (8) days now and his right to liberty continues to be curtailed and shall continue being infringed if this Application is not heard as a matter of urgency.
14. The Applicant suffers from a major and risky illness which occasioned failing health to him to the extent of requiring constant and close supervision or check up by a doctor, therefore his health shall continue to deteriorate and life put at risk if he unlawfully remains in custody under hazardous and unhealthy conditions awaiting an unknown action or fate.
15. The Applicant is also the sole bread winner of his family of a spouse and three kids who are still in college and high school and not self-sufficient therefore, the Applicant’s unfair detention has occasioned loss to his family who solely depend on him as the sole bread winner and provider.
16. The Applicant’s rights to liberty or to be presumed innocent until proven guilty as enshrined in the Constitution are being infringed upon and as he is being locked up unfairly and unprocedurally, and also being denied an opportunity to defend himself over allegations of perjury therefore, if this Honourable Court doesn’t intervene, the applicant stands to suffer serious injustice and irreparable harm.
The Applicant was released at the interim stage on his own cognizance and or personal bond and he later on deposited motor vehicle registration number KAL 353M MITSUBISHI LORRY and it was parked within the court premises as ordered.
This later order prompted the Applicant to file the second application dated 8th January 2025. It was brought Under Section 177 of the Criminal Procedure Code Cap 75, Articles 40 and 47(1) of the Constitution, 2010 and all other enabling provisions of the law)
They were praying for the following Orders THAT:
a) This application be certified urgent and heard ex-parte in the first instance.
b) A mandatory order, do issue by the honourable court, for the release and handing over possession of motor vehicle registration number KAL 353M MITSUBISHI LORRY/TRUCK to the applicant pending hearing and determination of this application.
c) The mandatory order, do issue by this honourable court directing the Court Administrator to supervise and release motor vehicle registration number KAL 353M MITSUBISHI LORRY/TRUCK to the applicant.
d) A mandatory order do issue by this honourable court, directing the applicant to pay to court the sum of Kshs. 100,000/00 as security for his freedom, as a substitute of motor vehicle registration no. KAL 353M.
e) Costs of this application be in the course.
THIS SECOND APPLICATION is grounded on the supporting affidavit sworn by JOHN AKEYO OGUMBO and on the grounds THAT:-
a) The applicant herein is the owner of the said motor vehicle registration Number KAL 353M, a Mitsubishi lorry/truck.
b) The motor vehicle is detained within the court premises as security for the applicant’s release from remand, pending hearing and determination of a notice of motion application dated 13th November, 2024.
c) The motor vehicle was surrendered by the applicant and deposited in court pursuant to court orders given by this court on the 18th November, 2024 releasing the applicant from remand prison upon the applicant’s own recognizance secured with the security of the motor vehicle registration No. KAL 353M.
d) The court ordered that upon his release, the applicant should deposit the vehicle into court by way of parking within the court's premises or any secure place to be nominated by the Court Administrator.
e) The applicant herein had filed a notice of motion application praying for orders of revision of the trial court’s orders issued on 6th November, 2024 and 11th November, 2024 locking up the applicant at Mombasa Remand Prison
f) The applicant is the surety in MOMBASA MCSO E047/2021 REPUBIC - VS- JOHN VINCENT ODINGA and had been harshly locked up by the trial court in remand as punishment for the accused person’s absence in court when the said matter came up for Judgment.
g) The accused person in the matter was out on bond pending hearing and determination of the matter and the applicant had surrendered and deposited the original log book of the motor vehicle in court thereof.
h) The said accused person appeared in court religiously without failure until 6 th November, 2024 when he was absent in court when the matter came up for judgment which occasioned the locking up of the applicant by the trial court.
i) The said orders were however issued irregularly and contrary to statutory provisions and principles of natural justice based on the facts and circumstances which occasioned the application for revision by the applicant.
j) This honourable court consequently heard the notice of motion application and gave interim orders on 18th November, 2024, releasing the applicant from custody forthwith upon compliance with the requisite conditions.
k) The applicant complied with the aforesaid orders and surrendered the motor vehicle which he parked within the court premises and begun to trace/track down the accused person who went into hiding, to avail him before court.
l) The said subordinate Court even issued a Warrant of Arrest against the said accused person in the matter which the investigating officer is executing alongside the applicant.
m) However, the applicant continues to suffer colossal damages by the continued detention of the vehicle within the court premises as the motor vehicle is a heavy-duty motor vehicle used for commercial work by the applicant of carrying, transporting and delivering large quantities of cement and other construction materials.
n) The convenient and affordable transportation/delivery of the said items has been curtailed and the applicant was compelled to hire/lease trucks from third parties to handle the said work which is costly and restrictive, leaving the applicant to incur financial losses.
o) The motor vehicle’s interior and exterior parts also continue to get worn out as they developed massive rust from exposure to direct excess sunlight while the vehicle continues to lie unattended to with the market value depreciating.
p) The motor vehicle’s longevity is determined by its mobility and service hence the continued idle detention subjects its parts to possible break down which definitely reduces the span of longevity. q) The driver of the motor vehicle had to unfortunately be laid off from his duty by the applicant as his employment was no longer tenable, thereby occasioning loss of a job.
r) The applicant is therefore apprehensive of the losses and damages suffered and continues. The applicant is therefore apprehensive of the losses and damages suffered and continues to live in anxiety and fear of other impending losses.
s) Nevertheless, the applicant is desirous and willing to pay into court a reasonable sum as the applicant’s bond, to suffice as security and have possession of the motor vehicle handed back to the applicant to have it resume performing its normal commercial functions.
t) The applicant has made an application for placement of a caveat on the motor vehicle, prohibiting transfer of ownership to a third party before determination of this application and only awaits registration by the National Safety & Transport Authority.
u) If this honourable Court doesn’t intervene, the applicant stands to continue suffering irreparable harm.
v) The respondent lacks any interest in the said motor vehicle and shall not suffer prejudice if the orders sought herein are granted.
w) The applicant will be greatly prejudiced if the orders sought are denied.
x) It is in the interest of justice that the orders sought herein are allowed.
The two Applications were served upon the respondents and affidavits of service filed.
Mr. Ngiri for the Respondent indicated that The Respondents had no proprietary interest in the vehicle and it was not their desire to punish the Applicant. His understanding was that the ownership documents were to be deposited in court and bond processed.
I however note that was not the actual position as those documents were already in court having been deposited as the security in the trial court. It would appear the High court wanted extra security or comfort in having the vehicle present in exchange for the Applicants freedom.
I have looked at the Application and note that there is merit on the Application for review as the vehicle continues to waste and that may not add value to anyone. The state also does not object to the Application.
It is however not lost on me that the accused person in the trial court has not yet been apprehended and he was released upon the undertaking of the applicant herein. I have not seen in his lengthy Applications what measures he is taking to make good the situation.
I will leave that to the trial court as I note the Applicant was seeking more time and his complaint was that he was not given time to trace the accused person and the full procedure on either forfeiture or the process leading to his being put into custody was not followed.
I will allow the two Applications and order the release of the said motor vehicle registration number KAL 353 M to the applicant on the following conditions;
- That The Applicant and his agents will not sell, transfer, dispose off or in any other manner tamper with the ownership of the said vehicle.
- A caveat be registered, and availed before The Deputy Registrar, indicating the case details and interest of the court prohibiting the sale or transfer of the subject motor vehicledone untill further orders. This should be before the vehicle is released. i have noted the process has already been initiated.
- The vehicle must at all times be comprehensively insured with a reputable firm.
- The Applicant shall deposit a cash bail of KSH 200,000//= and also avail two contact persons who should deposit their photographs ,copies of identity cards and telephone contacts with the deputy Registrar.
- The matter be mentioned before the trial court and the Applicant should be present at the next mention date so that he updates the court on his efforts in tracing the accused person.
- These orders will be in place for six months and if the applicant has not traced and availed the accused person before court, then the trial court may activate the procedure for forfeiture and or arrest and issue the appropriate NOTICE TO SHOW CAUSE.
The two applications succeed on the above terms with no orders as to costs.
DATED SIGNED AND DELIVERED VIRTUALY THIS 23RD DAY OF JANUARY 2025
LADY JUSTICE WENDY KAGENDO MICHENI
IN THE PRESENCE OF
MR NGIRI FOR THE RESPONDENT
MR ODENG FOR THE APPLICANT
BEBORA COURT ASSISTANT .