RULING
A. Introduction
1. Before this Court is a Notice of Motion dated June 2025 brought under Sections 362 and 364 of the Criminal Procedure Code seeking revision of proceedings in Kisii MCCR/E1488/2024 – Republic v Willington Kang’wana Nyabuti.
2. The Applicant, who stood surety for the accused person in the subordinate court, seeks orders that:
a) This Court calls for and examines the record of the subordinate court to satisfy itself as to the correctness, legality or propriety of the proceedings relating to forfeiture of bond;
b) The Applicant be allowed to deposit into court the sum of Kshs. 200,000/= being the bond sum undertaken, and upon such payment be discharged as surety and his title deed released.
3. The application is supported by the Applicant’s affidavit wherein he depones that the accused absconded court in November 2024; that despite efforts made by himself and the Investigating Officer the accused cannot be traced; and that when he offered to forfeit the bond sum in accordance with the bond terms, the trial court declined the request.
4. The Prosecution opposed the application on the ground that the Applicant is effectively seeking to vary bond terms from surety to cash bail.
B. Issue for Determination
5. The single issue for determination is whether the subordinate court acted illegally, incorrectly or improperly in declining to allow the surety to forfeit the bond sum and be discharged.
C. The Law on Revision
6. Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of criminal proceedings before a subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order.
7. Under Section 364 of the Code, the High Court may alter or reverse an order where the same is illegal, incorrect or improper.
8. The revisionary jurisdiction is supervisory in nature. It is not an appellate process but a mechanism to correct patent illegality or impropriety.
D. The Law on Surety and Forfeiture
9. The law governing forfeiture of bond is found in Sections 131 and 132 of the Criminal Procedure Code.
10. Where a bond is forfeited due to non-appearance of an accused person, the court must:
• Record the grounds of proof of forfeiture;
• Issue notice to the surety to show cause why the penalty should not be paid;
• If sufficient cause is not shown, order payment of the penalty or enforce recovery.
11. Importantly, the court retains discretion either to enforce the whole penalty, remit part of it, or discharge the surety upon sufficient cause shown.
12. The obligation of a surety is contractual in character. The surety undertakes to ensure attendance of the accused, failing which the penal sum becomes payable.
13. Once the accused absconds and the surety fails to produce him, the bond stands liable to forfeiture. The primary consequence is payment of the penal sum — not perpetual detention of the surety’s security.
E. Analysis
14. The record placed before this Court shows that:
• The Applicant stood surety in the sum of Kshs. 200,000/=;
• The accused absconded court in November 2024;
• The Applicant was summoned;
• The Applicant expressed inability to trace the accused and offered to forfeit the bond sum.
15. The trial court declined the Applicant’s request and indicated that he had bound himself to the bond terms and cannot run away from them .
16. With respect, that reasoning discloses is bad in law misdirection.
17. The legal consequence of failure by a surety to produce an accused person is forfeiture of the bond. The Criminal Procedure Code does not contemplate indefinite retention of a surety’s title deed without affording him the statutory pathway of forfeiture proceedings.
18. A surety cannot be compelled to perform the impossible. Once reasonable effort to trace the accused has failed and the surety is willing to meet the financial undertaking, the court’s role shifts to enforcement of forfeiture.
19. The subordinate court ought to have invoked Section 131 of the Criminal Procedure Code, formally recorded forfeiture, and ordered payment of the bond sum
20. Declining outright to accept forfeiture where the surety is willing to pay the full penal sum amounts to improper exercise of discretion.
21. The Prosecution’s argument that this amounts to variation of bond terms is misplaced. The Applicant is not seeking variation. He is seeking enforcement of the very forfeiture clause embodied in the bond terms he executed.
22. The trial court’s refusal to allow forfeiture in the circumstances was therefore legally improper.
F. Conclusion
23. This Court is satisfied that the order declining the Applicant’s request to forfeit the bond sum was improper within the meaning of Section 362 of the Criminal Procedure Code.
24. The revision jurisdiction of this Court is properly invoked.
G. Orders
25. Accordingly, the Court makes the following orders:
1. The ruling subordinate court dated 17th June 2025 declining the Applicant’s request are hereby revised and set aside.
2. The bond executed by the Applicant in Kisii MCCR/E1488/2024 is hereby declared forfeited pursuant to Section 131 of the Criminal Procedure Code.
3. The Applicant shall pay into the subordinate court the sum of Kshs. 200,000/= within thi(10) days from today.
4. Upon such payment, the Applicant shall stand discharged as surety and motor cycle log book which he deposited in court as security shall be released to him.
5. The The warrant of arrest pending against accused shall remain in force till further directions of the trial court .
6. Mention on 16.3.26 before the trial court for further orders on the warrant of arrest
7. Orders accordingly.
T.A ODERA
JUDGE
27.2.26
DATED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 27TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF MR KOIMA FOR PROSECUTION & CA MR KIPCHIRCHIR. APPLICANT ABSENT
A. Introduction
1. Before this Court is a Notice of Motion dated June 2025 brought under Sections 362 and 364 of the Criminal Procedure Code seeking revision of proceedings in Kisii MCCR/E1488/2024 – Republic v Willington Kang’wana Nyabuti.
2. The Applicant, who stood surety for the accused person in the subordinate court, seeks orders that:
a) This Court calls for and examines the record of the subordinate court to satisfy itself as to the correctness, legality or propriety of the proceedings relating to forfeiture of bond;
b) The Applicant be allowed to deposit into court the sum of Kshs. 200,000/= being the bond sum undertaken, and upon such payment be discharged as surety and his title deed released.
3. The application is supported by the Applicant’s affidavit wherein he depones that the accused absconded court in November 2024; that despite efforts made by himself and the Investigating Officer the accused cannot be traced; and that when he offered to forfeit the bond sum in accordance with the bond terms, the trial court declined the request.
4. The Prosecution opposed the application on the ground that the Applicant is effectively seeking to vary bond terms from surety to cash bail.
B. Issue for Determination
5. The single issue for determination is whether the subordinate court acted illegally, incorrectly or improperly in declining to allow the surety to forfeit the bond sum and be discharged.
C. The Law on Revision
6. Section 362 of the Criminal Procedure Code empowers the High Court to call for and examine the record of criminal proceedings before a subordinate court for purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order.
7. Under Section 364 of the Code, the High Court may alter or reverse an order where the same is illegal, incorrect or improper.
8. The revisionary jurisdiction is supervisory in nature. It is not an appellate process but a mechanism to correct patent illegality or impropriety.
D. The Law on Surety and Forfeiture
9. The law governing forfeiture of bond is found in Sections 131 and 132 of the Criminal Procedure Code.
10. Where a bond is forfeited due to non-appearance of an accused person, the court must:
• Record the grounds of proof of forfeiture;
• Issue notice to the surety to show cause why the penalty should not be paid;
• If sufficient cause is not shown, order payment of the penalty or enforce recovery.
11. Importantly, the court retains discretion either to enforce the whole penalty, remit part of it, or discharge the surety upon sufficient cause shown.
12. The obligation of a surety is contractual in character. The surety undertakes to ensure attendance of the accused, failing which the penal sum becomes payable.
13. Once the accused absconds and the surety fails to produce him, the bond stands liable to forfeiture. The primary consequence is payment of the penal sum — not perpetual detention of the surety’s security.
E. Analysis
14. The record placed before this Court shows that:
• The Applicant stood surety in the sum of Kshs. 200,000/=;
• The accused absconded court in November 2024;
• The Applicant was summoned;
• The Applicant expressed inability to trace the accused and offered to forfeit the bond sum.
15. The trial court declined the Applicant’s request and indicated that he had bound himself to the bond terms and cannot run away from them .
16. With respect, that reasoning discloses is bad in law misdirection.
17. The legal consequence of failure by a surety to produce an accused person is forfeiture of the bond. The Criminal Procedure Code does not contemplate indefinite retention of a surety’s title deed without affording him the statutory pathway of forfeiture proceedings.
18. A surety cannot be compelled to perform the impossible. Once reasonable effort to trace the accused has failed and the surety is willing to meet the financial undertaking, the court’s role shifts to enforcement of forfeiture.
19. The subordinate court ought to have invoked Section 131 of the Criminal Procedure Code, formally recorded forfeiture, and ordered payment of the bond sum
20. Declining outright to accept forfeiture where the surety is willing to pay the full penal sum amounts to improper exercise of discretion.
21. The Prosecution’s argument that this amounts to variation of bond terms is misplaced. The Applicant is not seeking variation. He is seeking enforcement of the very forfeiture clause embodied in the bond terms he executed.
22. The trial court’s refusal to allow forfeiture in the circumstances was therefore legally improper.
F. Conclusion
23. This Court is satisfied that the order declining the Applicant’s request to forfeit the bond sum was improper within the meaning of Section 362 of the Criminal Procedure Code.
24. The revision jurisdiction of this Court is properly invoked.
G. Orders
25. Accordingly, the Court makes the following orders:
1. The ruling subordinate court dated 17th June 2025 declining the Applicant’s request are hereby revised and set aside.
2. The bond executed by the Applicant in Kisii MCCR/E1488/2024 is hereby declared forfeited pursuant to Section 131 of the Criminal Procedure Code.
3. The Applicant shall pay into the subordinate court the sum of Kshs. 200,000/= within thi(10) days from today.
4. Upon such payment, the Applicant shall stand discharged as surety and motor cycle log book which he deposited in court as security shall be released to him.
5. The The warrant of arrest pending against accused shall remain in force till further directions of the trial court .
6. Mention on 16.3.26 before the trial court for further orders on the warrant of arrest
7. Orders accordingly.
T.A ODERA
JUDGE
27.2.26
DATED AND DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 27TH DAY OF FEBRUARY 2026 IN THE PRESENCE OF MR KOIMA FOR PROSECUTION & CA MR KIPCHIRCHIR. APPLICANT ABSENT