- Section 362 of the Criminal Procedure Code provides:
The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.
- Pursuant to the provision of the law, this court is vested with power to deal with a matter brought to its attention suo moto.
- Having read about the issue concerning alleged unreasonable bail terms granted in the matter; and, considering the Rapid Results Initiative to decongest prisons, this court called for the record of the lower court to satisfy itself of the propriety of the order in that respect so as to ensure the provisions of the Constitution are complied with.
- The genesis of this matter follows indictment of the Francis Mwima, hereinafter referred to as the ‘applicant’ and another, with the offence of Stealing contrary to Section 268 of the Penal Code. This was after the police investigated allegations that they jointly stole a ring valued at USD 5300. In the alternative, the applicant was stated to have received and disposed off the ring knowing it was stolen. The co-accused admitted the charge at the outset while the applicant denied. As a result, the applicant was granted Bond of Kenya Shillings One Million (Ksh. 1,000,000/-) or Cash Bail of Kenya Shillings Five Hundred Thousand (500,000/-).
- To reach an informed decision, I did call for a bail assessment / status report in respect of the applicant. The stated report by a Probation Officer sought to establish the suitability of bail terms granted. It was established that the applicant is married and a father of two children aged between 17 and 13 years, respectively. That he has no intention of interfering with witnesses whom he does not know and if released he intends to stay at Ngando along Ngong road where he will be housed by his cousin as he searches for gainful employment. Two of his brothers who are in gainful employment are willing to be his sureties.
- Pursuant to the Victim Protection Act, the victim’s views should have been considered but ardent efforts made to reach her were fruitless as the Number provided by the Investigating Officer went unanswered.
- It was therefore the recommendation of the Probation Officer that the applicant is not a flight risk hence his bail terms may be reviewed.
- Article 49(1)(h) of the Constitution provides that:
(1) An arrested person has the right—
(h) To be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
- An accused person should not be deprived of his liberty by being subjected to pre-trial detention. The right to freedom is enshrined in Article 24 of the Constitution; and, the right to liberty can only be limited if provided by law.
- According to the bail and bond policy guidelines, the amounts set shall be reasonable, given the importance of the right to liberty and the presumption of innocence. What is important is to ensure an accused turns up for trial. The fact of bail and bond not being too low so as to entice the accused to abscond must also be considered. Therefore, each case should be considered according to its circumstances.
- Taking into account the offence, circumstances in which it was committed by the offender who pleaded guilty to the charge; this is a case where the trial court should have directed the Probation department to carry out social inquiry and file a report prior to granting orders that are indeed unreasonable, considering the value of the item stolen.
- The upshot of the matter is that this calls for review which I hereby do by setting aside the order of the trial court that I substitute with an order granting the applicant Bond of Kenya Shillings Thirty Thousand (Ksh. 30,000/-) with a surety of similar amount and a contact person.
- It is so ordered.