Charles Ndung’u v Republic [2022] KEHC 1844 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINALREVISIONCASEE419 OF 2021

CHARLES NDUNG’U ............................................................ APPLICANT

VERSUS

REPUBLIC ...........................................................................RESPONDENT

RULING

This application CHARLES NDUNGU, has applied to this court vide an application dated 20. 12. 2021. The same seeks revision of the orders of the lower court issued on 17. 12. 2021 denying the applicant bail pending trial in Milimani Traffic Case No. 5569/2020, Republic Versus Charles Ndungu. The application is supported by the affidavit of the applicant. It is opposed by the state.

It was submitted that the applicant is not a flight risk. That there was a confusion on the dates shown for taking plea which resulted in the applicant failing to attend court. That the applicant was never informed of the date when the matter came up before the court. Counsel relied on the case of Republic Versus Francis Kimathi (2017) eKLR, that all offences are bailable unless compelling reasons are shown.

The prosecution opposed this application on grounds that the cash bail receipt showed plea was extended to 28. 10. 2020. That bail is not automatic and that the lower court considered the facts as presented. It was further submitted that the applicant declined and prevented any calls so that he could not be reached and that is why the court found that he is a flight risk.

I have considered the submissions by both sides and the Probation Officer’s Report filed herein on 8. 2.2022. Under Article 49(1)(h) bail is constitutionals right available to all accuseds irrespective of the charges they face. The only limitation to this provision is that the right may be denied in case the prosecution shows the existence of compelling reasons(s).

The prosecution has opposed this application on the basis that the applicant is a flight risk. These submissions were grounded on the fact that the applicant missed to attend court on the date his case was fixed for plea taking. I have considered the evidence shown to court by the applicant through her advocate. It confirms that the cash bail receipt had date of plea changed from 8. 10. 2020 to 28. 10. 2020. The charge sheet was however registered on 12. 10. 2020 and warrant of arrest were issued after the applicant failed to attend court.

I am in the circumstances persuaded by the submissions of learned counsel for the applicant that the failure to attend court for plea by the applicant may not have been with intentions to abscond, but rather out of a confusion on the dates as above.

I therefore find merit in this application and hereby revise the orders of the Hon. E. Kimilu SPM, made on 17. 12. 2021 in Traffic Case No. 5569/2020. Pending the trial and determination of his case, the applicant may be out on bond on the following terms:-

i)    A bond of Ksh.500,000/= with 1 surety of a similar amount.

ii)   In the alternative, a cash bail of Ksh.200,000/= (Two hundred thousand)

iii)  The applicant is ordered never to contact or interfered with any prosecution witnesses, either directly or indirectly till this case is determined.

iv)    The applicant is ordered to attend court at all times as would be ordered by the court till his case is heard and determined.

D. O. OGEMBO

JUDGE

7. 3.2022.

Court:

RULING READ OUT ON-LINE IN PRESENCE OF MR. MUTUNGA FOR THE ACCUSED, THE ACCUSED (NAIROBI REMAND) AND MR. KIRAGU FOR THE STATE.

D. O. OGEMBO

JUDGE

7. 3.2022.

Court:

THE LOWER COURT FILE TO BE RETURNED BACK TO THE TRIAL COURT.

D. O. OGEMBO

JUDGE

7. 3.2022.