ARISING FROM THE ORDER GIVEN ON 6TH DECEMBER 2024 IN Mombasa Criminal Case No. E1007 of 2021
[1] The Notice of Motion dated 18/12/2024 is brought under the provisions of Article 165(6) & (7) of the Constitution of Kenya and Sections 362-367 of the Criminal Procedure Code.
[2] It seeks the following orders:
(a) This application be certified as urgent and service be dispensed with.
(b) Pending the hearing and determination of this application this court be pleased to order return of the applicant’s passport deposited in court pursuant to orders given and issued on 6/12/2024.
(c) This court be pleased to call for the record of proceedings in Mombasa Criminal Case No. E1007 of 2021 and to make an order exonerating the applicant herein from any blame made by the trial court that the delay in this case has always been occasioned by the applicant’s absence.
(d) This court be pleased to exercise its inherent jurisdiction to order the trial court to dispense with the attendances of the applicant on mentions dates, mentions for directions and hearing of applications on account of the applicant’s health and recommendations by the doctors that he cannot stand for long nor walk other than those attendances during the main hearing.
(e) In the alternative to prayer (d) above this court be pleased to direct that the applicant be accorded the opportunity to appeal in court virtually on all mentions and subsequent hearing s until such a time as his conditions may improve.
(f) In case of any medical emergency this court be pleased to issue a declaration that the applicant is free to seek medical treatment outside the jurisdiction of the court in accordance with Article 43(1)(a) without the need to approach the trial court for such permission provided a formal communication has been made to the court by the applicant’s advocate.
(g) Costs of this application be provided for.
[3] The court called for and examined the trial court’s record for the propriety, legality and regularity of the proceedings and orders complained of.
[4] The main complaint was the order that the applicant deposits his passport in court so that he can be given the permission to travel out of the country.
[5] I have carefully looked at the record and I note that this is a 2021 matter. Only 3 witnesses have given evidence and the bulk of the applications for adjournments were by the defence.
[6] When the matter was initially scheduled for hearing on 12/10/2021, Accused 1 was not present on account of some ailment and being in hospital. The court was firm and he (Accused 1) appeared the next day (on 13/10/2021) and the hearing proceeded. The other two witnesses gave evidence November 2021 and since then it has never taken off on account of the accused persons absence, especially the applicant.
[7] Against this background, I understand the trial court’s basis for giving the orders complained about. It is true that there was no order barring the applicant from travelling out of the country, but when he did travel, his return was not smooth. I have seen a warrant of arrest was issued when the defence failed to supply the relevant medical documents as directed by the court
[8] Accordingly, I am not convinced that the order issued to have the passport deposited in court is misplaced. It does not deny the applicant his freedom of movement. It is only to ensure that the court is aware, if and when het ravels out of the jurisdiction.
[9] I have also noted the other prayers that the applicant be excused from appearing in court physically from mentions or applications due to his ill health and immobility. The medical notes that were supplied and I am persuaded this is a reasonable ask and I will allow the same. The applicant is excused from being physically present for the mentions , routine directions and in this era of virtual hearings and owing to the delays experienced and the main hearing if he chooses to. His advocate should however be present and the Applicant should not later on turn around and complain that his rights to a fair trial were breached by his absence.
[10] I have also noted the multiplicity of applications in the file which seek to just derail and delay the main hearing. I may advise the applicant and all the parties herein that the conclusion of this matter may be to his advantage and even improve his failing health which I note is associated with high blood pressure.
[11] A conclusion 0f the matter may lead to either his acquittal, and he can breathe a sigh of relief and improve his health, or lead to a conviction and closure which means he can make some peace with himself and the complainants and rest his ailing heart. I note the case revolves around some property and the parties are related and close business associates.
[12]. I am neither a medicine man nor a clairvoyant, but I do know that a clear conscience and peace of mind is a sweet balm and tonic especially for an ageing, ailing and frail heart. What am I leading to? The dispute herein involves relatives and once close business associates or their kin. They all know the truth. A reconciliation would not only give them peace over his matter but also in the hereafter. This is not an order, but food for thought. Otherwise the multiplicity of cases and myriad of applications, not only sinks the depth of the holes in their pockets but also erodes the family ties for generations to come. He who has ears , let them hear.
.
[13] For now, the application succeeds partially. The prayer seeking the release of the passport is denied but the one seeking that the applicant be excused from being physically present in court is allowed. He is excused from being physically present in court as long as his advocate is present and he (Applicant ) logs in virtually. The exception does not include the Judgment date.
No orders as to costs
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 23RD DAY OF JANUARY 2025
WENDY MICHENI
JUDGE
DELIVERD IN THE PRESENCE OF;
MR NGIRI FOR THE STATE
MR MUTHURI FOR THE APPLICANT
MS BEBORA COURT ASSISTANT