By a Notice of Motion dated 5 th June, 2025, brought under Article 47, 49 (1) (h), 50 (2) (a), 165 (3) (6) (7), 159, 47, of the Constitution of Kenya, 2010, the applicant has moved this court for ORDERS:
Spent
THAT this Honourable Court be pleased to vacate the orders of Bail Forfeiture entered on the 27 th May, 2024 for SHANZU MCCR 422/2023 and to reinstate bond in the matter pending the hearing and determination of this application.
THAT this Honourable Court be pleased to lift the warrants of arrest issued against the applicant in SHANZU Criminal Case No. 422/2023 on the 12 th February, 2025.
THAT this Honourable Court be pleased to vacate the orders of bail forfeiture entered on 3 rd July, 2024 for SHANZU CRIMINAL CASE NO. 490/2023 and to reinstate bond in the matter pending the hearing and determination of this application.
THAT the Honourable Court be pleased to issue Release Orders with regards to SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023 compelling Shimo La Tewa Prison to release the hearing and determination of this Application.
THAT costs of this application be provided for.
The application is propped by the grounds on its face and the affidavit of Ali Mzee Ali, the applicant.
He deponed that he is the accused person in SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023, where he was granted bond in both cases, whose terms he complied with.
However, while out on bail he was arrested and detained in MOMBASA Criminal Case No. 746 of 2024, and consequently he missed court appearances in SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023. As a result the learned magistrate who had conduct of both matters issued warrants of arrest and the bail forfeiture on 27 th May, 2024 and 3 rd July, 2024 on the aforementioned matters, respectively.
When he finally appeared before the trial court on 25 th July, 2024 and 10 th September, 2024, respectively, the applicant explained his reasons for non-attendance to which the court lifted the warrants of arrest but failed to vacate the orders of bail forfeiture. He was however released without being requested to post any further bail in either matter.
Further, he was arrested on 5 th February, 2025 in MOMBASA MCCR E195/2025, arraigned in court on the 6 th February, 2025 and granted bond which terms he complied on 23 rd April, 2025 and a release order issued. However, while detained in the matter, he again missed a court appearance in SHANZU CR. CASE E422 OF 2023, as he was not presented in court resulting in the issuance of Warrants of Arrest.
That, even though his non-attendance was out of his own control, he remains detained at Shimo La Tewa Prison, as the learned trial magistrate in SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023 has declined to issue release orders, which denial he terms as an affront to the principles of natural justice.
The Respondent represented by the ODPP - Mr. Ngiri (Prosecution Counsel) submitted that they did not oppose the application.
Analysis and Determination
Section 131 of the Criminal Procedure Code , Cap. 75 requires a court to make inquiry of the accused, and a surety if any, before making an order for forfeiture of cash bail. Section 131 (1) and (2) of the Code provides:
1) Whenever it is proved to the satisfaction of a court by which a recognizance under this Code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.
(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.
The above section requires a court to request a party to show cause why cash bail should not be forfeited. Having considered the proceedings at the trial court, this seems not to have been done.
The application of that section was considered in the case Peter Gitari Mwiandu v Republic [2017] eKLR .
“The trial court’s record indicates that the procedure of forfeiture under Section 131 of Cap 75 was not followed. The trial court failed to ensure that Mwiandu was accorded the right to be heard. Mwiandu should have been served with a notice to show cause. It is only after the trial court had considered that cause shown by Mwiandu that the trial court could have ordered for forfeiture.”
Similarly, in the case Isaac Kiplangat Mutai – v- Republic [2013]eKLR the court further stated thus:
“On the second issue, the order of forfeiture of the cash bail, it is the requirement of Section 131 of the Criminal Procedure Code that the court will first make an inquiry of the accused or his surety to show cause why his recognizance should not be forfeited. The order forfeiting his cash bail cannot therefore be made simultaneously with the order cancelling the bail/bond. The accused as well as the surety is required to be granted opportunity, to a hearing, to show cause why his bail/bond should not be forfeited to the State. Failure to do so is a grave breach of the rules of natural justice.
I therefore set aside the orders of forfeiture without due process, of the cash bail of Ksh100,000/= and the further order for Ksh150,000/= and Ksh.200,000/= surety as being manifestly unjust. I direct that the cash bail of Kshs.100,000/= paid by the accused be restored to the credit of the accused, and he be granted bail on the said basis of Kshs.100,000/= cash bail.”
From the above it is clear the trial court failed to give an opportunity to the Applicant to show cause before forfeiting her cash bail. That was in contravention of section 131 of the Criminal Procedure Code. That contravention will lead to the revision/setting of those orders because those orders were irregular.
Further, record indicates that the applicant’s non-appearance was by reason of his arrest, arraignment and detainment in subsequent criminal proceedings, which reasons were beyond his control.
In the foregoing, I find merit in the application and I hereby order as follows;
The orders of Bail Forfeiture entered on the 27 th May, 2024 for SHANZU MCCR 422/2023 and on 3 rd July, 2024 for SHANZU CRIMINAL CASE NO. 490/2023, respectively, be and are hereby set aside, and accordingly the bond terms thereto are hereby reinstated.
Consequently, the warrants of arrest issued against the applicant in SHANZU Criminal Case No. 422/2023 on the 12 th February, 2025 be and are hereby set aside and/or lifted, and accordingly Release Orders with regards to SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023 be and are be issued.
For the avoidance of doubt, the above orders do not preclude the trial court from issuing necessary orders to ensure and/or compel the appearance of the applicant during trial, if the bond terms are further disobeyed.
There shall be no orders as to costs.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…24th….day of….July.………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S).......ABSENT............................
FOR THE RESPONDENT (S)…MR SIRIMA………………………
COURT ASSISTANT...........................................
Spent
THAT this Honourable Court be pleased to vacate the orders of Bail Forfeiture entered on the 27 th May, 2024 for SHANZU MCCR 422/2023 and to reinstate bond in the matter pending the hearing and determination of this application.
THAT this Honourable Court be pleased to lift the warrants of arrest issued against the applicant in SHANZU Criminal Case No. 422/2023 on the 12 th February, 2025.
THAT this Honourable Court be pleased to vacate the orders of bail forfeiture entered on 3 rd July, 2024 for SHANZU CRIMINAL CASE NO. 490/2023 and to reinstate bond in the matter pending the hearing and determination of this application.
THAT the Honourable Court be pleased to issue Release Orders with regards to SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023 compelling Shimo La Tewa Prison to release the hearing and determination of this Application.
THAT costs of this application be provided for.
The application is propped by the grounds on its face and the affidavit of Ali Mzee Ali, the applicant.
He deponed that he is the accused person in SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023, where he was granted bond in both cases, whose terms he complied with.
However, while out on bail he was arrested and detained in MOMBASA Criminal Case No. 746 of 2024, and consequently he missed court appearances in SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023. As a result the learned magistrate who had conduct of both matters issued warrants of arrest and the bail forfeiture on 27 th May, 2024 and 3 rd July, 2024 on the aforementioned matters, respectively.
When he finally appeared before the trial court on 25 th July, 2024 and 10 th September, 2024, respectively, the applicant explained his reasons for non-attendance to which the court lifted the warrants of arrest but failed to vacate the orders of bail forfeiture. He was however released without being requested to post any further bail in either matter.
Further, he was arrested on 5 th February, 2025 in MOMBASA MCCR E195/2025, arraigned in court on the 6 th February, 2025 and granted bond which terms he complied on 23 rd April, 2025 and a release order issued. However, while detained in the matter, he again missed a court appearance in SHANZU CR. CASE E422 OF 2023, as he was not presented in court resulting in the issuance of Warrants of Arrest.
That, even though his non-attendance was out of his own control, he remains detained at Shimo La Tewa Prison, as the learned trial magistrate in SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023 has declined to issue release orders, which denial he terms as an affront to the principles of natural justice.
The Respondent represented by the ODPP - Mr. Ngiri (Prosecution Counsel) submitted that they did not oppose the application.
Analysis and Determination
Section 131 of the Criminal Procedure Code , Cap. 75 requires a court to make inquiry of the accused, and a surety if any, before making an order for forfeiture of cash bail. Section 131 (1) and (2) of the Code provides:
1) Whenever it is proved to the satisfaction of a court by which a recognizance under this Code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.
(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.
The above section requires a court to request a party to show cause why cash bail should not be forfeited. Having considered the proceedings at the trial court, this seems not to have been done.
The application of that section was considered in the case Peter Gitari Mwiandu v Republic [2017] eKLR .
“The trial court’s record indicates that the procedure of forfeiture under Section 131 of Cap 75 was not followed. The trial court failed to ensure that Mwiandu was accorded the right to be heard. Mwiandu should have been served with a notice to show cause. It is only after the trial court had considered that cause shown by Mwiandu that the trial court could have ordered for forfeiture.”
Similarly, in the case Isaac Kiplangat Mutai – v- Republic [2013]eKLR the court further stated thus:
“On the second issue, the order of forfeiture of the cash bail, it is the requirement of Section 131 of the Criminal Procedure Code that the court will first make an inquiry of the accused or his surety to show cause why his recognizance should not be forfeited. The order forfeiting his cash bail cannot therefore be made simultaneously with the order cancelling the bail/bond. The accused as well as the surety is required to be granted opportunity, to a hearing, to show cause why his bail/bond should not be forfeited to the State. Failure to do so is a grave breach of the rules of natural justice.
I therefore set aside the orders of forfeiture without due process, of the cash bail of Ksh100,000/= and the further order for Ksh150,000/= and Ksh.200,000/= surety as being manifestly unjust. I direct that the cash bail of Kshs.100,000/= paid by the accused be restored to the credit of the accused, and he be granted bail on the said basis of Kshs.100,000/= cash bail.”
From the above it is clear the trial court failed to give an opportunity to the Applicant to show cause before forfeiting her cash bail. That was in contravention of section 131 of the Criminal Procedure Code. That contravention will lead to the revision/setting of those orders because those orders were irregular.
Further, record indicates that the applicant’s non-appearance was by reason of his arrest, arraignment and detainment in subsequent criminal proceedings, which reasons were beyond his control.
In the foregoing, I find merit in the application and I hereby order as follows;
The orders of Bail Forfeiture entered on the 27 th May, 2024 for SHANZU MCCR 422/2023 and on 3 rd July, 2024 for SHANZU CRIMINAL CASE NO. 490/2023, respectively, be and are hereby set aside, and accordingly the bond terms thereto are hereby reinstated.
Consequently, the warrants of arrest issued against the applicant in SHANZU Criminal Case No. 422/2023 on the 12 th February, 2025 be and are hereby set aside and/or lifted, and accordingly Release Orders with regards to SHANZU MCCR 422/2023 and SHANZU MCCR 490/2023 be and are be issued.
For the avoidance of doubt, the above orders do not preclude the trial court from issuing necessary orders to ensure and/or compel the appearance of the applicant during trial, if the bond terms are further disobeyed.
There shall be no orders as to costs.
DATED, SIGNED and DELIVERED at NAIROBI Virtually this…24th….day of….July.………2025.
W. K. MICHENI
JUDGE
IN THE PRESENCE OF;
FOR THE APPLICANT(S).......ABSENT............................
FOR THE RESPONDENT (S)…MR SIRIMA………………………
COURT ASSISTANT...........................................