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The applicant in this matter is the state and the revision is basically seeking the review of bail terms imposed by the court.
The court under Section 127 of the Criminal Procedure code may order the taking sufficient bail when that first taken is found to be insufficient. The burden of proof would therefore lie on the party seeking the enhancement of bail terms and not the respondent.
The respondents are opposed to the application and they contend that the court should not be inclined to interfere with the ruling of the learned Hon Magistrate.
The respondents urged the court to order the deponent in support of the application to be summoned for cross- examination by the respondents.
The court is however not inclined to adopt the route proposed by respondents since a Revision by its very nature focuses on the legality, propriety, correctness or the regularity of the ruling and orders made by the trial court. See Director of Public Prosecutions vs Perry Mansukh Khasangara $ 8 others {2020} KEHC 6532 (kLR) .
The determination of these issues would require the examination of the record of the lower court thus the reason why the High Court under Section 362 of the Criminal Procedure Code is enjoined to call for the lower court record for its review.
To entertain viva voce evidence in a revision would be unprocedural and alien to the practice in dealing with Revisions.
The High court under section 365 of the Criminal Procedure retains the discretion to determine whether to hear parties.
The court therefore is enjoined to examine the record and determine whether to hear the parties personally or through counsel and in this matter the court has decided to hear the advocates for the parties.
To resort to the calling of the deponent for cross-examination is in my view to introduce unnecessary drama into an otherwise straightforward and narrow issue of whether there is good ground for the court to interfere with the lower court orders on bail.
The court has taken into account the fact that the issues raised by the applicant can simply be addressed by relying on the record of the lower court.
The court therefore finds no reason to have the deponent Mr Mutuma Prosecution counsel summoned for cross-examination by the respondents.
The request therefore is rejected and the court shall proceed to hear the revision on the basis of the material filed.
The advocates for the parties shall have occasion to ventilate all the issues at the hearing.
It is so ordered.
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The applicant in this matter is the state and the revision is basically seeking the review of bail terms imposed by the court.
The court under Section 127 of the Criminal Procedure code may order the taking sufficient bail when that first taken is found to be insufficient. The burden of proof would therefore lie on the party seeking the enhancement of bail terms and not the respondent.
The respondents are opposed to the application and they contend that the court should not be inclined to interfere with the ruling of the learned Hon Magistrate.
The respondents urged the court to order the deponent in support of the application to be summoned for cross- examination by the respondents.
The court is however not inclined to adopt the route proposed by respondents since a Revision by its very nature focuses on the legality, propriety, correctness or the regularity of the ruling and orders made by the trial court. See Director of Public Prosecutions vs Perry Mansukh Khasangara $ 8 others {2020} KEHC 6532 (kLR) .
The determination of these issues would require the examination of the record of the lower court thus the reason why the High Court under Section 362 of the Criminal Procedure Code is enjoined to call for the lower court record for its review.
To entertain viva voce evidence in a revision would be unprocedural and alien to the practice in dealing with Revisions.
The High court under section 365 of the Criminal Procedure retains the discretion to determine whether to hear parties.
The court therefore is enjoined to examine the record and determine whether to hear the parties personally or through counsel and in this matter the court has decided to hear the advocates for the parties.
To resort to the calling of the deponent for cross-examination is in my view to introduce unnecessary drama into an otherwise straightforward and narrow issue of whether there is good ground for the court to interfere with the lower court orders on bail.
The court has taken into account the fact that the issues raised by the applicant can simply be addressed by relying on the record of the lower court.
The court therefore finds no reason to have the deponent Mr Mutuma Prosecution counsel summoned for cross-examination by the respondents.
The request therefore is rejected and the court shall proceed to hear the revision on the basis of the material filed.
The advocates for the parties shall have occasion to ventilate all the issues at the hearing.
It is so ordered.
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