Diriye & 2 others v Republic [2023] KEHC 25072 (KLR)

Diriye & 2 others v Republic (Criminal Revision E164 of 2022) [2023] KEHC 25072 (KLR) (9 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25072 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Revision E164 of 2022

EM Muriithi, J

November 9, 2023

Between

Abdi Mohamed Diriye

1st Applicant

Ahmed Billow Daud

2nd Applicant

Ahmed Mohamed Sheikh

3rd Applicant

and

Republic

Respondent

Ruling

The application 1. Before the court is application dated 13/4/2022 seeking specific orders on criminal revision as follows:“1. Thatdue to the urgency hereof, service of this application be dispensed with the same be certified as urgent and it be heard ex-parte in the first instance.2. That upon the hearing this application ex-parte, this Honourable Court be and is hereby pleased to order the release of Abdi Mohamed Diriye, Ahmed Billow Daud and Ahmed Mohamud Sheikh from Wajir G.K. Prison on such terms as the Honourable Court deems just and expedient pending the hearing and determination of this application.3. That there be a stay of proceedings in Wajir Magistrates Court Sexual Offence Case No. E022 of 2021 and in particular the ruling scheduled for 11th May, 2022 pending the hearing and determination of the application herein.4. That this Honourable Court do call for and examine the record in Wajir Magistrates Court Sexual Offence Case No. E022 of 2021 touching on the proceedings of 11th April, 2022 relating to the applicants herein for the purpose of satisfying itself as the correctness, legality and/or propriety of the order of detention issued against the applicants herein.5. Thatthis Honourable Court do set aside, vary and/or review the orders issued on 11th April, 2022 against the applicants herein.6. Thatthe costs of this application be provided for.”

2. The grounds of the application were set out in the application as follows:“Grounds.-(i)That the applicants herein stood surety for the accused persons in Wajir Magistrates Court Sexual Offence Case No. E022 of 2021 and deposited log books for 3 motor vehicles viz KCL xxxQ, KCZ xxxJ and KAU xxxP.(ii)Thatthe accused persons failed to attend court on 30th March, 2022 as a consequence of which the court directed that all the sureties and accused persons attend court on 11th April, 2022. (iii)Thaton 11th April, 2022 the three sureties/applicants attended court voluntarily as ordered by the court but the accused persons were absent.(iv)Thatthe court ordered that the sureties be remanded in custody awaiting a ruling on the bond status to be delivered on 11th May, 2022. (v)Thatthe procedure adopted by the court in detaining the sureties was irregular and contrary to the express provisions of Section 131 of the Criminal Procedure Code Cap 75 Laws of Kenya.(vi)Thatthe continued incarceration of the applicants based on a flawed procedure is causing them unjustified loss of liberty and untold suffering having regard to the fact that all sureties herein profess Islamic faith and are in the period of fasting.(vii)Thatit is only fair, just and in the interest of justice that the application herein be allowed.”

3. The facts relied on by the applicant were set out in an affidavit sworn by the Counsel, principally at paragraphs 2-9 thereof as follows:“2)ThatAli Abdi Hassan, Heyba Kusow Keisane and Hassan Abdullahi Abdi were charged vide Wajir Magistrates Court Sexual Offence Case No. E022 of 2021. (Annexed hereto and marked KPT 1 is a copy of the charge sheet)3)Thatthe applicants herein stood surety for the accused persons to the tune of Kshs. Five Hundred Thousand (Kshs. 500,000/=) each and deposited log books for their motor vehicles whose registration numbers are captured hereunder-a.KCL xxxQb.KCZ xxxJc.KAU xxxP4)Thatthe accused persons failed to attend court on 30th March. 2022 as a consequence of which the court directed that all the sureties and the accused persons do attend court on 11th April, 2022. 5)Thaton 11th April. 2022 the three applicants/sureties voluntarily attended court as ordered but the accused persons were absent.6)Thatthe applicants pleaded with the court for time to enable them trace and present the accused persons in court.7)Thatthe court ordered that the sureties be remanded in custody awaiting a ruling on the bond status to be delivered on 11th May. 2022. (Annexed hereto and marked KPT 2 are copies of the remand warrants for the applicants.8)That the proceedings relating to the court session of 11th April, 2022 are yet to be typed as the Honourable Magistrate is out of station on official duties and the court assistants are reportedly unable to read her handwriting without her assistance.9)Thatthe procedure adopted by the court in detaining the sureties was irregular and contrary to the express provisions of Section 131 of the Criminal Procedure Code Cap 75 Laws of Kenya as well as settled and binding Judicial decisions on the matter.”

4. Upon consideration of the application under certificate of urgency ex parte upon filing during the Court vacation, the duty Court (L.W. Gitari, J.) made the orders for release of the sureties pending inter partes hearing as follows:“Order.I have considered the application dated 13. 4.22 under a certificate of urgency.I certify it as urgent due to the fact that the applicants are likely to suffer unjustified loss of liberty. I note that the procedure followed by the trial magistrate was flawed due to failure by the trial magistrate to comply with section 131 of the Criminal Procedure code (cap 75 Laws of Kenya) which requires that the surety be summoned to show cause why the security should not be forfeited to the state. lt is only after cause is not shown and the warrant of attachment cannot be executed that surety can be sent to prison In the circumstances I find that there is no good reason why the applicants should remain in prison.I order as follows:1. The applicants shall be released from prison forthwith pending the hearing and determination of the application as prayed under prayer (2).2. There be stay of proceedings in criminal case nO.E 022/2021 as it relates to the applicants and in particular the ruling on bail scheduled on 11. 5.22. 3.The application be served and be mentioned before the presiding judge on 21. 4.22. L.Gitari,Judge”Proceedings under revision

5. The trial court’s record of proceedings for 11/4/2022, which is under revision, is distinctly typed and they indicate the elaborate proceedings of the day as follows:“11th April 2022Virtual Court ProceedingsCoramBefore: Hon R. Aganyo (PM)Court Assistant: Mr NuhProsecutor: Mr OmbatiMr Mohamednur: I am present for all the three accused persons.Ms Matoke: I am present, watching brief for the Complainant.Accused person no. 1: AbsentAccused person no.2: AbsentAccused person no. 3: AbsentMr Mohamednur: The three accused persons are all absent. The three sureties for the accused persons are in court, each of them deposited a logbook. The sureties are not able to find the three accused persons. The Court directed the sureties to be present in court with the accused persons to take plea today. I am informed that the three accused persons cannot be found. They request for time to locate the three accused persons to find them. If not found, they will each report back to court. We regret the non -attendance of the accused persons and we humbly pray to the court requesting that the surety request be accepted.Ms Matoke: It's unfortunate that each of the three accused persons have chosen to disobey the court. The sureties should guarantee their attendance in court, and if not, they should communicate their whereabouts. What happens if they are released and they are released and then they choose to disappear. This is a matter which involves a young girl. If no repercussions are done, the rights to and of the child who is the complainant herein will not be upheld. The high court has rendered decisions that sureties have a responsibility to attend court or they produce the accused persons respectively. We have had 2 or 3 adjournments because the three missing accused persons who have each decided to play smart and avoid the justice proceedings. I pray to the court that the request by the defence counsel be rejected and the court exercises its powers in enforcing their responsibility.Prosecutor: It is regrettable that we are in this process of dealing with sureties and not accused persons. As rightly demonstrated by Ms Matoke, the court places a great responsibility on the surety especially where the accused persons are absent from court. The three accused persons herein are continuously absent in the court proceedings without the court's permission. The process of approving sureties is so intense so that sureties are informed of the consequences that will befall them in instances when accused persons are absent or missing. For two or three hearings, the court has been the one looking for the three accused persons who have been consistently absent. The sureties are also not telling the court where the three accused persons are. It is their responsibility; they have failed to perform their responsibility in this process. Where sureties have failed to perform their duties, the outcome must be visited upon the sureties. I pray that strict consequences as provided for be applied on the sureties. We are dealing with a case where a minor was defiled. I pray that the court sends a strict and stern warning to people out there, that the court is not interested in their properties; it is interested in the three missing accused persons. In this case where the accused persons are not present, and the sureties have not explained their whereabouts, they should be dealt with as they are aware of the consequences of facing either a jail term, forfeiture of the bond items or both or upon further orders of the court as it may deem fit. This is a unique case; I pray that the consequences be visited upon the sureties.Mr Mohamednur: While we acknowledge the victim is a minor, it must not be lost that the allegations that the three accused persons are facing are allegations until proven through a trial with them in court. The laws provide for a fair hearing in Article 50. The three accused persons must not be condemned unheard. The parents appeared in person. The sureties are present before court today. There are minors involved. Justice must be done, and seen to be done. The prayer of the Prosecution must not be accepted. The sureties are in court in adherence to the court order. They require time to report and say why they cannot trace them. Section 131 of the CPC, their role is clear. We humbly pray that the sureties not be subjected to punishment that are not necessary. We pray that they be given the time as requested. The fact that the minors are involved, should not be used as a cane to punish the sureties or the three accused persons. This being a criminal case, the state should prove its case beyond reasonable doubt.Court: Ruling on the 11th of May 2022. In the meantime, noting the continued conduct of the three accused persons, specifically their long period of absence and disappearance of the three accused persons, as well as the trend of disappearance of each of the three accused persons who have failed to abide by the bond terms to simply appear before me continuously and are their absence without leave of court, I prudently exercise my discretion in consideration of the circumstances before me, and order that the three sureties be remanded in custody at the Wajir G.K. Prison until then.HON. R. AGANYO (HSC, OGW)MAGISTRATE”

Submissions 6. I have considered the submissions by the Counsel for the applicant and the DPP respectively filed on 9/6/2023 and 11/9/2023 herein. Urging the full effect of the Criminal Procedure Code provision of s.131, counsel for the applicant emphasized that the trial court had no jurisdiction and or discretion to remand the applicant sureties and cited persuasive authorities of Nelson Simiyu v. R (2021) eKLR; Geoffrey Kinuthia Wamuti v R (2019) eKLR; Muinde Muoki v. R (2017) eKLR; and John Mwanje Mutongoya v R (2017) eKLR.

7. The DPP agreed on the applicability of section 131 of the Criminal Procedure Code and urged that the trial had exercised a discretion to order the remand of the sureties pending a ruling on the question of issue on the violation of the bond by the accused, as follows:“7. The aforementioned [section 131 of the Criminal Procedure Code] is the procedure laid down in dealing with the sureties who have failed in their duties of ensuring accused attend court when required to do so.8. The trial magistrate exercised its discretion judiciously by remanding the applicants to await the court's ruling which was slated for 11th May, 2022. 9.The remand of the applicants should not be interpreted as being the court's ruling but was to secure the ends of justice. Furthermore, it should not be interpreted that the applicant's detention to await a well-reasoned ruling by the trial court was illegal and or unlawful.10. Given the circumstances of the case and the fact that the applicants have since been released from custody we humbly pray for the following orders:-i)The applicants do avail motor vehicle registration numbers KCL xxxQ, KCZ xxxJ and KAU xxx P before the trial court and show cause why the motor vehicles should not be forfeited.ii)If prayer (i) is not obeyed, each of applicant to deposit Kshs 500,000 or to show cause why it should not be paid iii) If prayer (i) and (ii) is not complied, a warrant for the attachment and sale of the motor vehicles be issued forthwith.iv)The stay of proceedings in Wajir Magistrate's Court Criminal S.O. E022 of 2021 be vacated.”

8. Both sides agree that the law on how to deal with sureties in circumstances of breach of their undertaking in a criminal trial is set out in section 131 of the Criminal Procedure code, which provides as follows:“131. Forfeiture of recognizance1. Whenever it is proved to the satisfaction of a court by which a recognizance under this Code has been taken, or, when the recognizance is for appearance before a court, to the satisfaction of that court, that the recognizance has been forfeited, the court shall record the grounds of proof, and may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.2. If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover it by issuing a warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead.3. A warrant may be executed within the local limits of the jurisdiction of the court which issued it; and it shall authorize the attachment and sale of the movable property belonging to the person without those limits, when endorsed by a magistrate within the local limits of whose jurisdiction the property is found.4. If the penalty is not paid and cannot be recovered by attachment and sale, the person so bound shall be liable, by order of the court which issued the warrant, to imprisonment for a term not exceeding six months.5. The court may remit a portion of the penalty mentioned and enforce payment in part only.6. When a person who has furnished security is convicted of an offence the commission of which constitutes a breach of the conditions of his recognizance, a certified copy of the judgment of the court by which he was convicted may be used as evidence in proceedings under this section against his surety or sureties, and, if the certified copy is so used, the court shall presume that the offence was committed by him unless the contrary is proved.”

9. It is clear from the express textual interpretation of section 131 of the Criminal Procedure Code that the following principles apply:1. There is no room for the detention of the sureties to punish them for failure to ensure the accused attend court, or to exert pressure on them to avail the accused persons for whom they stand surety.2. The court must be satisfied by proof that the surety in in violation of the terms of the recognizance/bond.3. If so satisfied, the Court “may call upon any person bound by the recognizance to pay the penalty thereof, or to show cause why it should not be paid.”4. Before a “warrant for the attachment and sale of the movable property belonging to that person, or his estate if he is dead”, is issued, there must have been a default to pay the penalty amount or otherwise show cause why it should not be paid.5. The surety may be imprisoned for term of six months, “If the penalty is not paid and cannot be recovered by attachment and sale”.6. In discretion of the court, the penalty by payment of the surety bond may be recovered in part only.

10. The applicants in this case, were not shown on the evidence to have been given an opportunity (1) to avail the accused persons and therefore there is no satisfactory proof of violation of the terms of bond and therefore forfeiture; (2) to pay any penalty, show cause why it should not be paid; and (3) they were consequently remanded without legal justification on any provisions of law. With respect, their detention on remand to await a ruling as indicated by the trial court was a violation of law.

Prevalence of accused absconding 11. The Court is concerned of prevalence of cases of accused absconding their trial after grant of bail but it cannot impose criminal sanction which are not provided by the law. The principle of nullum crimen, nulla poena sine lege, that there is no crime or penalty without law, meaning that one can only be convicted and punished for doing something if there is a law against it and a penalty is fixed in criminal law is entrenched in the constitutional stipulation of legality under Articles 50(2) (n) and 165 (6) of the Constitution.

12. The Court must, of course, promote the effective discharge of the prosecutorial mandate of the DPP especially in serious crimes of sexual offences, murder, manslaughter, and such offences but its process must not be abused to exact revenge on the accused or his sureties. When properly convicted the accused must face the promised penalty and if he absconds the surety must discharge the undertaking made in the surety to secure the attendance of the accused or the penalty for breach of the undertaking. However, the penalty for imprisonment is a default sentence after the surety fails to honour the bond of his undertaking. It is not a method of enforcing the bond undertaking!

13. The Court notes the serious offences, respectively under section 260 of the Penal Code and section 10 of the Sexual Offences Act, of abduction and gang rape of child of fifteen years that the accused are charged with, and might understand the zeal of the trial court to ensure the accused, if they be established to be the perpetrators should suffer punishment. This court’s sympathy also lies with the effective prosecution of the serious crimes charged herein, and for that purpose the mater should be prosecuted to its full and logical conclusion.

14. However, in remanding the applicant sureties in this case, the trial court jumped the set-out procedures of the section 131 of the Criminal Procedure Code and was, therefore, in error. The prayer for revision of the trial Court order of 11/4/2022 is justified in terms of section 362 and 364 of the Penal Code and Article 165 (6) of the Constitution. The Court respectfully agrees with the ruling and order of L.W. Gitari J. sitting as duty judge in this revision who released the surety applicants at the ex parte stage, and with the courts in the cases cited by the applicant’s counsel in his Submissions of 9/6/2023 and set out above.

Duty of the trial court 15. The trial court must deal with the matter of the sureties in scrupulous regard of the procedure under section 131 of the Criminal Procedure Code, and the prosecution must pursue the arrest of the accused persons to bring them to full trial of their charges. In terms of section 364 (1) (b) of the Criminal Procedure Code, the Court reverses the order of the trial court subject of the revision herein, and directs the trial court to act in strict accordance with section 131 of the Criminal Procedure Code.

Orders 16. Accordingly, for the reasons set out above, the Court makes the following orders:1. The proceedings and orders of the trial court of 11/4/2022 in Wajir Principal Magistrates Court Sexual Offence Case No. E022 of 2021 are quashed, and the court is directed to proceed to deal with the trial and any issues of breach of recognizance by the sureties/applicants herein in scrupulous compliance with the provisions of section 131 of the Criminal Procedure Code.2. The stay of proceedings herein granted pending the ruling of this court on the revision is discharged, and trial court file shall forthwith be returned to Wajir Law Court for hearing and final determination of the case in accordance with the law.3. For purposes of directions on further proceedings in the trial, the matter shall be mention before the trial Court at Wajir on 16/11/2023. Order accordingly.

DATED AND DELIVERED THIS 9TH DAY OF NOVEMBER, 2023. EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Kabue for the Applicants.Mr. Masila for the DPP.