1. The application herein dated 26/4/2024 is for an order for revision of the learned trial magistrate’s orders on grounds that the trial court admitted the applicant to bond of KShs 900,000/= but has not given her an option of cash bail without offering any reason. It is submitted that on various occasions, the applicant has asked the trial court to admit her to reasonable bond terms and to further alternative cash bail terms but the request has been denied without reasonable explanation by the trial court.
2. Although learned counsel for the applicant has couched her submissions in line of violation of constitutional right, I note that this application is not a petition for redress of violation of a constitutional right. This is a simple request by the applicant for this court, exercising its supervisory power over subordinate courts as provided for under Article 165(6) and (7) of the constitution which provide 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.
3. The Court is not obliged to hear the parties on an application for revision but I gave the respondent the opportunity to file submissions seeing that the applicant had filed lengthy submissions accompanying the application. The prosecution did not however take up that opportunity to submit to the same, an indication that they were not opposed thereto.
4. The applicant is jointly charged with two others in Mombasa Magistrates Court Criminal Case No. E324 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 31/10/2023 at Co-operative Bank Ltd, Likoni branch within Mombasa County, with others not before court, stole KShs 2,366,000/= the property of Boniface Maundu Mbulu.
5. The trial court record, which this court called for and was made available (even though this court called for the proceedings and other documents to be scanned and uploaded to the court’s e-filing systems (CTS)) shows that after the three accused persons took plea on 20/2/2024 court that took plea after entering a plea of not guilty granted each accused person a cash bail of KShs 900,000/= or alternative cash bail of similar amount. The file was then allocated for hearing before the current trial court.
6. It is therefore not true as contended by the applicant that the trial court has failed to head her plea to be released on alternative cash bail because the alternative for her release on cash bail was granted in the first instance.
7. Her other plea is that her requests to be released on reasonable bond terms has been denied without the trial court offering any reasons. Learned counsel submits that the applicant is ready to offer a surety for her release from custody. She has offered two persons either of whom can stand surety for her. One works with the Teachers Service Commission (TSC) and the other with the Department of Defence (DoD). She has provided copies of their respective payslips as confirmation of their working status, an indication that they are capable of securing her attendance in court as and when required and also capable of forfeiting the sum assured in court if required in the event that the applicant absconds court.
8. There are several Constitutional and statutory provisions which 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.
9. In the present case, the applicant and her co-accused persons were granted bond and cash bail terms by the plea court. I have perused the trial court record and I note that the 1st accused person managed to get a surety for the bond terms granted and was released from custody. The applicant and the Kioko Kyalo, the 3rd accused person are still in custody. That makes it apparent that their remaining in custody to-date means that they have been unable to raise the bond and bail terms fixed by the court. The applicant now complains that the trial court has declined to grant her request for review of the bond and bail terms without offering any reason whatsoever.
10. Indeed, I note that at least on two occasions, that was on 9/4/2024 both the applicant and the 3rd accused persons requested the trial court for reduction of bond terms and on 25/6/2024 the 3rd accused person renewed her request. The trial court in each instance simply stated that bond reduction denied. There was no explanation offered by the learned trail magistrate whatsoever.
11. 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.
12. The law has not defined what excessive bail amount is but the same can be considered on a case by case basis. 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.
13. 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.). The High Court, Lesiit, J in Joses Kimathi Murumua & 3 Others v Republic [2013] eKLR, upon considering the Ng’ang’a v Republic case (supra) observed that:
“…The learned trial magistrate, in exercise of discretion whether or not to grant bail to all the accused person jointly charged in this case, would have been perfectly justified to give varying bond terms to the accused persons depending with the merits, circumstances of their case and the factors unique to each of them. The learned trial court is mandated to consider the bond application by each accused person and to examine each accused person, based on the peculiar facts of each accused person, and the circumstances pertaining to their respective case and also the merits of the application. Having done so, the trial court would then be expected to determine which of the accused person qualify to be granted bond, and which ought not to and give reasons for each decision. To give an example a court would be in order to give a child bond and deny an adult based on the age and unique circumstances of each accused.”
14. This decision is a good guide to the learned trial magistrate to understand that in case he felt shackled by the earlier bond terms granted and which one of the accused persons was able to meet and was released but the others remained in custody, it was in order for him to consider the individual circumstances of each accused person.
15. In yet another decision in 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. He has been in remand custody for a period of over two years.”
16. 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 and the 3rd accused person who remain in custody because they are unable to meet the bond and bail terms set.
17. 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.
18. In the premises, I find that the application herein has merit and in terms of section 123(3) CPC this court reviews the bond terms set for the 2nd and 3rd accused persons in the trial court to KShs 200,000/= with one surety of a like sum or cash bail of KShs 100,000/= each. I note that the applicant has sureties who are ready to secure her release from custody. The Deputy Registrar of this Court shall forthwith proceed to examine the said sureties for suitability to secure the attendance of the applicant at trial. Considering the time the applicant and the 3rd accused have remained in custody, verification of the documents for authenticity shall be done after the examination and approval if the same is had. In the event that they are found unsuitable after verification then the trial court shall give the applicant an opportunity to present a suitable surety.
19. The trial court file is returned to the Lower Court for further proceedings therein.
20. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 8th day of October 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Kimathi (MS) for the applicant
Mwaura (MS) h/b for Ngiri for the respondent
Etropia - Court Assistant
2. Although learned counsel for the applicant has couched her submissions in line of violation of constitutional right, I note that this application is not a petition for redress of violation of a constitutional right. This is a simple request by the applicant for this court, exercising its supervisory power over subordinate courts as provided for under Article 165(6) and (7) of the constitution which provide 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.
3. The Court is not obliged to hear the parties on an application for revision but I gave the respondent the opportunity to file submissions seeing that the applicant had filed lengthy submissions accompanying the application. The prosecution did not however take up that opportunity to submit to the same, an indication that they were not opposed thereto.
4. The applicant is jointly charged with two others in Mombasa Magistrates Court Criminal Case No. E324 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 31/10/2023 at Co-operative Bank Ltd, Likoni branch within Mombasa County, with others not before court, stole KShs 2,366,000/= the property of Boniface Maundu Mbulu.
5. The trial court record, which this court called for and was made available (even though this court called for the proceedings and other documents to be scanned and uploaded to the court’s e-filing systems (CTS)) shows that after the three accused persons took plea on 20/2/2024 court that took plea after entering a plea of not guilty granted each accused person a cash bail of KShs 900,000/= or alternative cash bail of similar amount. The file was then allocated for hearing before the current trial court.
6. It is therefore not true as contended by the applicant that the trial court has failed to head her plea to be released on alternative cash bail because the alternative for her release on cash bail was granted in the first instance.
7. Her other plea is that her requests to be released on reasonable bond terms has been denied without the trial court offering any reasons. Learned counsel submits that the applicant is ready to offer a surety for her release from custody. She has offered two persons either of whom can stand surety for her. One works with the Teachers Service Commission (TSC) and the other with the Department of Defence (DoD). She has provided copies of their respective payslips as confirmation of their working status, an indication that they are capable of securing her attendance in court as and when required and also capable of forfeiting the sum assured in court if required in the event that the applicant absconds court.
8. There are several Constitutional and statutory provisions which 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.
9. In the present case, the applicant and her co-accused persons were granted bond and cash bail terms by the plea court. I have perused the trial court record and I note that the 1st accused person managed to get a surety for the bond terms granted and was released from custody. The applicant and the Kioko Kyalo, the 3rd accused person are still in custody. That makes it apparent that their remaining in custody to-date means that they have been unable to raise the bond and bail terms fixed by the court. The applicant now complains that the trial court has declined to grant her request for review of the bond and bail terms without offering any reason whatsoever.
10. Indeed, I note that at least on two occasions, that was on 9/4/2024 both the applicant and the 3rd accused persons requested the trial court for reduction of bond terms and on 25/6/2024 the 3rd accused person renewed her request. The trial court in each instance simply stated that bond reduction denied. There was no explanation offered by the learned trail magistrate whatsoever.
11. 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.
12. The law has not defined what excessive bail amount is but the same can be considered on a case by case basis. 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.
13. 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.). The High Court, Lesiit, J in Joses Kimathi Murumua & 3 Others v Republic [2013] eKLR, upon considering the Ng’ang’a v Republic case (supra) observed that:
“…The learned trial magistrate, in exercise of discretion whether or not to grant bail to all the accused person jointly charged in this case, would have been perfectly justified to give varying bond terms to the accused persons depending with the merits, circumstances of their case and the factors unique to each of them. The learned trial court is mandated to consider the bond application by each accused person and to examine each accused person, based on the peculiar facts of each accused person, and the circumstances pertaining to their respective case and also the merits of the application. Having done so, the trial court would then be expected to determine which of the accused person qualify to be granted bond, and which ought not to and give reasons for each decision. To give an example a court would be in order to give a child bond and deny an adult based on the age and unique circumstances of each accused.”
14. This decision is a good guide to the learned trial magistrate to understand that in case he felt shackled by the earlier bond terms granted and which one of the accused persons was able to meet and was released but the others remained in custody, it was in order for him to consider the individual circumstances of each accused person.
15. In yet another decision in 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. He has been in remand custody for a period of over two years.”
16. 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 and the 3rd accused person who remain in custody because they are unable to meet the bond and bail terms set.
17. 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.
18. In the premises, I find that the application herein has merit and in terms of section 123(3) CPC this court reviews the bond terms set for the 2nd and 3rd accused persons in the trial court to KShs 200,000/= with one surety of a like sum or cash bail of KShs 100,000/= each. I note that the applicant has sureties who are ready to secure her release from custody. The Deputy Registrar of this Court shall forthwith proceed to examine the said sureties for suitability to secure the attendance of the applicant at trial. Considering the time the applicant and the 3rd accused have remained in custody, verification of the documents for authenticity shall be done after the examination and approval if the same is had. In the event that they are found unsuitable after verification then the trial court shall give the applicant an opportunity to present a suitable surety.
19. The trial court file is returned to the Lower Court for further proceedings therein.
20. Orders accordingly.
Ruling delivered, dated and signed in Open Court and Virtual Platform, Teams this 8th day of October 2024
HON. ANDAYI W. F.
JUDGE
In the presence of: -
Kimathi (MS) for the applicant
Mwaura (MS) h/b for Ngiri for the respondent
Etropia - Court Assistant