JULIUS MAKUMBO MUTEMBEI VS ODPP AND DIRECTOR OF CRIMINAL INVESTIGATION

(ORIGINATING FROM CRIMINAL MISC. APPLICATION NO. E756 OF 2024 DCI CHANGAMWE V. JULIUS MUTEMBEI MAKUMBO)

Introduction

1. This Honourable Court is called to determine the Notice of Motion application dated 11^th November, 2024 brought under the dint of Articles 19,20,21,29,25,29,49,50,165(6)(7)159 & 259 of the Constitution and Section 362, 364(1)(b) of the Criminal Procedure Code and all other enabling provisions of the Law by the Applicant who was arrested on the allegation under the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code and booked at Changamwe Police Station vide OB 02/30/10/2024.
2. The Applicant sought the following orders:-
3. Spent
4. THAT this Honourable court be pleased to vary, alter, review and or revise order of the Court issued on 4/11/2024 in Criminal Misc. Application No. E756/2024 DCI CHANGAMWE V. JULIUS MUTEMBEI MAKUMBO directing that the Applicant be held in custody for additional period of 14 days pending investigations and preferred charges.
5. THAT this Honourable court be pleased to review the bond terms OF Kshs. 4,000,000/- granted on 5/11/2024 to reasonable bail/bond terms with an option of alternative reasonable cash bail as the court shall deem fit.
6. THAT the Honourable Court be pleased to call for and examine the record of Hon Magistrate in MOMBASA MISC. CRIMINAL APPLICATION NO. E756/24 and CRIMINAL CASE NO.E1903/2024 REPUBLIC VS JULIUS MUTEMBEI MAKUMBO for the purposes of satisfying itself as to the correctness, legality and propriety of the orders of the Court.
7. THAT this Honourable Court be pleased to vacate the order of continued detention of the applicant and order the release of the applicant on reasonable bail or bond terms or any other terms as the court may deem fit and appropriate.
8. The Application is supported by the applicant’s affidavit wherein he avers that:-
9. The Applicant was arrested on 1^st November, 2024 and arraigned in court on 4^th November, 2024, without a formal charge contrary to natural justice and instead the investigating officer made an application, MISC APP No. E756 of 2024 seeking continued detention of the applicant for 14 days pending investigations.
10. The applicant is a lay man who does not understand the court process and did not understand what was happening in court. In fact the above-said application was never explained to him and its consequences.
11. It was an error for the Court to allow continued detention of the applicant notwithstanding that there was no holding charge preferred against him at the time.
12. The reasons tendered for further detention of the applicant are not convincing and in no way the applicant can interfere with evidence which is already in the police custody. i.e mobile phones and motor vehicles.
13. On 5^th November, 2024, the applicant was once again arraigned in court. This is despite the investigating officers having sought to detain him for 14days on 4^th November, 2024.
14. On 5^th November, 2024, when he was arraigned in court, this time he was charged with COUNT 1 of CONSPIRACY TO COMMIT A FELONY CONTRARY TO SECTION 393 OF THE PENAL CODE AND COUNT 2, STEALING CONTRARY TO SECTION 268(1) AS READ WITH S.275 OF THE PENAL CODE.
15. Consequently the applicant took a plea of not guilty and was granted a bond of Kshs. 4,000,000/-
16. Despite the applicant being formally charged and bond granted, the orders of the Honourable magistrate to detain him for 14 more days which were issued on 4^th November, 2024 were never discharged. The unreasonable bond terms and the continued detention has deprived the applicant his liberty and has defeated the very purpose of bail/bond which is to secure his attendance in court.
17. It was against the law of natural justice to continue holding the applicant in custody yet the moment he was charged it means the investigations were completed. The moment the investigating officers decided to charge him, that’s when the investigations completed and they cannot seek continued detention.
18. The Applicant is a family man with school going children and affixed place of aboard in MERU. He is not a flight risk. He is willing to abide by any bond terms including reporting to the DCI.
19. The applicant is suffering from high blood pressure and is currently in need of medical attention. His health is deteriorating while being held at Changamwe police station.
20. A bond of Kshs 4,000,000/- is out of his family’s reach and this amounts to denial of bond/bail.
21. The denial of reasonable bond/bail terms /reasonable alternative cash bail also amounts to denial of bond.
22. The applicant will face a miscarriage of justice if the bond terms are not reviewed to reasonable and affordable terms and also if the order continuing his detention is not reviewed/discharged.
23. The moment the applicant decided to charge the applicant, it means the investigations were complete and the orders of his continued detention ought to have been discharged. Moreover, the orders for his detention were made without any legal and constitutional basis and in total disregard to his constitutional right to liberty.
24. The Applicant's liberty has been arbitrarily curtailed without proper and reasonable cause.
25. The state is treating the applicant as a guilty person by his continued detention and denial of reasonable bond/bail terms.

Analysis and Determination

1. The High Court’s power of revision is set out in Article 165 (6) and (7) which provides:-

“ (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 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.”

1. Section 362 of the Criminal Procedure Code provides:-

“ The High Court may call 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. Section 364(1) of the Criminal Procedure Code provides: -

“ 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 his 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 section 354, 357 and 358, and may enhance sentence;

b. In the case of any other order other than an order of acquittal alter or reverse the order.

(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence.”

1. The revisionary jurisdiction of the High Court was discussed by Odunga J in a persuasive decision of Joseph Nduvi Mbuvi – Versus - Republic [2019] eKLR: -

“ In my considered view, the object of the revisional jurisdiction of the High Court is to enable the high Court in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.”

1. Similarly Nyakundi J in Prosecutor – Versus -  Stephen Lesinko [2018] eKLR outlined the principles which will guide a court when examining the issues pertaining to section 362 of the Criminal Procedure Code as follows:-: -
   1. Where the decision is grossly erroneous;
   2. Where there is no compliance with the provisions of the law;
   3. Where the finding of fact affecting the decision is not based on evidence or it is result of misreading or non-reading of evidence on record;
   4. Where the material evidence on the parties is not considered; and
   5. Where the judicial discretion is exercised arbitrarily or perversely if the lower court ignores facts and tries the accused of lesser offence.
2. The above provisions convey jurisdiction to this court to exercise revisionary powers in respect of orders of the subordinate courts. This court is therefore possessed of the requisite jurisdiction to hear and determine this application.
3. From the Miscellaneous Application, the Applicant was charged with COUNT 1 of CONSPIRACY TO COMMIT A FELONY CONTRARY TO SECTION 393 OF THE PENAL CODE AND COUNT 2, STEALING CONTRARY TO SECTION 268(1) AS READ WITH SECTION 275 OF THE PENAL CODE on 31^st October, 2024. The trial court granted bond at Kshs. 4 million.
4. Section 123 of the Criminal Procedure Code gives the High Court jurisdiction to review a trial court’s decision on bail conditions. In considering whether to review a trial court’s decision on bail/bond in terms of the said provision, the court as in all exercise of power of appellate interference with the discretion of the trial court, must be satisfied that the decision of the trial court is plainly wrong or, has misdirected itself in failing to take into account a material factor or taking into account an immaterial factor and it has resulted in a miscarriage of justice. Section 123 (2) of the Criminal Procedure Code provides that the amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive.
5. To ensure that the interest of justice is upheld, entering or leaving the country by an accused person in the course of a trial may be restricted.
6. Having said that, I must determine whether this court has Jurisdiction to review orders of the trial court. According to Section 362 of the Criminal procedure Code (CPC) this court is limited to correcting errors, omissions, irregularities and illegalities on the trial court’s record.  And in case of a miscarriage of Justice the court must intervene. In the case of George Aladwa – Versus - Republic (2016) eKLR, Wakiaga J. held that, Wherein the court in revisionary jurisdiction cannot sit in appeal and re-appreciate the evidence.  Jurisdiction under Section 362 and 368 as read with Article 162 of the Constitution is only exercised to correct manifest error in the order of the subordinate courts but should not be exercised in a manner that turns the revisional court into appeal.
7. In the Defense Forces Council and 6 others – Versus - Gabriel Kirigha Chawana & 26 Others (2015) eKLR it was stated that:

“…In its supervisory jurisdiction, the High Court must maintain a delicate balance, distinguishing  its role of an arbiter from that of an overseer whose mandate is to consider and review the procedure and conduct of proceedings in the subordinate courts with a view to determining the legality or otherwise of the process, including any actions undertaken without jurisdiction.  The supervisory jurisdiction is not intended to usurp the role of the tribunal but to ensure that the inferior tribunal acts within its bounds.”

Conclusion and Disposition

1. Looking at what transpired before the trial Magistrate, there was no miscarriage of justice. The trial court exercised its discretion within set principles of granting bail. It took into consideration measures that go towards safeguarding the administration of justice in the criminal justice system. In the result the application is unmeritorious, consequently, it is dismissed.

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   absent