Agesa & another v Republic [2022] KEHC 17207 (KLR)

Agesa & another v Republic (Miscellaneous Criminal Application E208 of 2022) [2022] KEHC 17207 (KLR) (Crim) (1 December 2022) (Ruling)

Neutral citation: [2022] KEHC 17207 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E208 of 2022

JM Bwonwong'a, J

December 1, 2022

Between

Samuel Agesa

1st Applicant

Irene Nduku

2nd Applicant

and

Republic

Respondent

(Being an application for revision of the bail/bond terms set by the trial court on 14th July 2022)

Ruling

1The applicants have applied for review of their bail/bond terms that were settled by the trial court, on the ground that they were excessive vide a notice of motion dated July 18, 2022.

2The applicants were jointly charged with the offence of grievous harm contrary to section 234 of the Penal Code (Cap 63) Laws of Kenya before the magistrates’ court. In count II, the 2nd applicant was charged with the offence of infringing a child’s right to health contrary to section 9 as read with section 20 of the Children’s Act, and in count III, she was charged with the offence of failing to protect a child from physical abuse contrary to section 13 (1) as read with 20 of the Children’s Act.

3The trial court admitted each of the applicants to a bond of Kshs 500,000 with a surety of a similar amount or a cash bail.

4The application is premised on the grounds that the bail and bond amount is inordinately excessive, unconscionable, and punitive in the circumstances and if allowed to prevail the accused persons will be subjected to punishment without being convicted. The applicants are individuals of low economic status and are therefore not in a position to raise the bail/bond amounts demanded even if they are willing. Further, the applicants are not a flight risk nor can they interfere with the witnesses. In addition, the prosecution did not object to them being admitted to bail/bond.

5In opposition, the respondent filed grounds of opposition. The grounds raised are that the application is without merit as it does not exhibit how the trial court's order was illegal improper, incorrect, and/or the proceedings leading thereto are irregular. The bond/bail terms granted by the trial court were arrived at after considering all the relevant factors including the nature and seriousness of the offence. The bail/bond terms granted by the trial court are reasonable in the circumstances of the case. The applicants have neither alleged nor established that the trial court in setting the bond terms exercised its discretion inappropriately. The applicants have neither alleged nor established any special circumstances to warrant the review of their bail/bond terms.

The written submissions of the applicants 6Mr Javan Omondi learned counsel for the applicants submitted that the probation report in court gave a brief on the economic situation of the applicants which is a true of reflection of their situation. Further, the applicants enjoy the presumption of innocence until proven guilty and the gravity of the offence is not an issue. Counsel cited the case of Cyril Kipruto Serem vs Republic [2020] e-KLR, where the court held that bail terms should be tailored to secure and ensure the attendance in court of the accused person.

7Counsel further submitted that the High Court has supervisory jurisdiction under section 362 of the Criminal Procedure Code. He urged the court to find that the bail/bond terms set by the trial court were inordinately high and excessive.

The written submissions of the Respondent 8Ms Maureen Akunja, learned Prosecution Counsel submitted that the offence the accused persons are facing if found guilty are liable to life imprisonment. Further, this court must be alive to the fact that the main objective of bail or bond is to guarantee the attendance of the accused persons.

9In addition, the High Court exercises it supervisory powers only in exceptional cases where there has been a miscarriage of justice owing to a defect in procedure or a manifest error on a point of law. She argued that the applicants have not demonstrated any excessive or unreasonable terms set by the court. That the mere reason that the applicants are unable to meet the terms set is not sufficient reason to warrant this court to interfere with the discretion of the trial court.

Issues for determination 10I have considered the application, the response, the submissions by the parties and the applicable law. The issue for determination is whether the terms of release of the applicants were excessively high.

Analysis and determination 11The trial court has the discretion to determine the bail/bond terms. Secondly, bail/bond terms should not be arbitrary, but the court must consider the relevant factors affecting the grant of bail/bond terms including the penalty of offence and the accused ability to meet the bail/bond terms. Thirdly, the bail/bond terms should not be excessive or unreasonable. Fourthly, an accused has the right to seek review of his bail/bond terms by the trial court or the High Court.

12Section 124 of the Criminal Procedure Code provides as follows:Before a person is released on bail or on his own recognizance, a bond for such sum as the court or police officer thinks sufficient shall be executed by that person, and, when he is released on bail, by one or more sufficient sureties, conditioned that the person shall attend at the time and place mentioned in the bond and shall continue so to attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court or police officer.

13In the present case, the record shows that the applicants did not seek review in the trial court. The judicial power with respect to such application is discretional and exercisable in the first instance by the trial court. While the High Court is vested with wide powers to supervise the subordinate courts, it is the trial court that is seized of the facts and circumstances of the case and the socio-economic circumstances of the accused person, which are key in determining whether or not to grant bail and on what terms and conditions.

14Where a bail application has been made and the trial court under the circumstances, is unable to decide due to inadequacy of information, it is at liberty to seek more information to arrive at an informed decision. This may be done through further inquiries as outlined in the Judiciary Bail and Bond Guidelines which states in paragraph 4. 26 (c) c that: -'The court may request for a bail report where it considers that it does not have sufficient information to make a fair and appropriate bail decision, including the following instances – (c) Where the accused person has been granted bail but fails to meet bail terms and seeks review of those terms.'

15Following the above, I consider it procedural that an application for review ought to have been made in the trial court in the first instance and that a revision or appeal to the High Court would follow upon being dissatisfaction. Be that as it may, I have considered the grounds set out in the application within the parameters of section 362 of the Criminal Procedure Code for incorrectness, illegality or impropriety. For certainty, I restate in the succeeding paragraphs the principles that usually guide a court in considering an application for bail/bond.

16The Judiciary Bail and Bond Policy Guidelines of 2015 have provided parameters to assist the court in exercising discretion judiciously. With respect to bail and bond, they require that the court in granting bail should consider the seriousness of the offence, the strength of the case, interference of witnesses, failure of the accused to attend or where the accused is charged with another case, the need to protect the victim(s), the security and safety of the accused, the likelihood of absconding from the jurisdiction of the court and other factors, which must be weighed by the court in the interest of justice. Such an exercise of discretion requires a wholistic approach and the court must, in close circumspection, take into account the circumstances of the case and the accused person individually.

17In granting bail, the court must also ensure that bail/bond terms must not be excessive or unreasonable and should not be far greater than what is necessary to ensure or guarantee the accused person’s appearance before the court. Where this is the case, it would be tantamount to a denial of bail, a right which is enshrined in theConstitution and the Criminal Procedure Code as outlined above. This position was expounded in the case of Taiko Kitende Muinya [2010] e-KLR.

18The Bail and Bond Policy Guidelines at page 9 paragraph 3. 1. (d) underpins the right to reasonable Bail and Bond terms as follows: -d)'Right to Reasonable Bail and Bond Terms:Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial.

20Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.'

21The above position has been enunciated in various decisions by the courts as in the case of Andrew Young Otieno vs Republic [2017] e-KLR where Kimaru J in that regard stated as follows: -'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 a 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 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 to be imposed by the trial magistrate. He has been in remand custody for a period of over two years.'

22The court must however ensure that the bail or bond terms must not be so low an amount that would make it easy for the accused to be tempted to forfeit the same and abscond court. Whatever the court in its discretion grants should also be commensurate to the offence committed as already stated. In the present case, the accused were jointly charged with offence of grievous harm, in count II, the 2nd applicant was charged with the offence of infringing a child’s right to health and in count III, she was charged with the offence of failing to protect a child from physical abuse. The trial court admitted each of the applicants to a bond of Kshs. 500,000 with a surety of a similar amount or a cash bail. The record of the trial court does not indicate whether there was any form of inquiry as to the financial capability of the accused persons or a pre-bail report which would act as a guiding factor to the court in deciding the amount of bail. The fact that the accused persons are still in custody despite being granted bail demonstrates that the conditions were excessive. Their continued incarceration is therefore a good ground for a review of the bail or bond terms.

23The upshot of the foregoing is that I hereby set aside the orders of the trial court issued on July 14, 2022 because the bond terms were excessive in view of the humble background of the applicants as shown in the social report of the probation officer.

24In the circumstances, I find that the bail/bond terms were excessive, which are prohibited by section 123 (2) of the Criminal Procedure Code (Cap 75) Laws of Kenya in the following terms: 123(2) The amount of bail shall be fixed with due regard to the circumstances of the case, and shall not be excessive.

25In their place I hereby grant the applicants bail/bond as follows: - 1. The 1st accused person is granted a bond of Kshs 200,000/= with a surety of a similar amount.

2. In the alternative, he is granted a cash bail of Kshs 100,000/=

3. The 2nd accused person is granted a bond of Kshs 250,000/= with a surety of a similar amount.

4. In the alternative, she is granted a cash bail of Kshs 150,000/=.

RULING SIGNED, DATED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 1ST DAY OF DECEMBER 2022J M BWONWONG’AJUDGEIn the presence of-Mr. Kinyua court assistantMr. Kiragu for the Republic/RespondentMr. Omondi for the accused/applicants