Jonathan Batita & Richard Gitau Wari v Republic [2017] KEHC 9770 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CRIMINAL APPLICATION NO.255 OF 2017

JONATHAN BATITA .………………………………………………………...1ST APPLICANT

RICHARD GITAU WARI………………………………………………………2NDAPPLICANT

VERSUS

REPUBLIC………………………………………………………………………RESPONDENT

RULING

The Applicants, Jonathan Batita and Richard Gitau Wari are facing several counts before the trial magistrate’s court of obtaining money by false pretences contrary to Section 313 of the Penal Code. The charges relate to alleged sale of certain parcels of land at Kitengela. When the Applicants were initially arraigned before the trial magistrate’s court, they were released on bail pending trial. However, both Applicants failed to attend court on the various dates that the court had appointed for trial of the case. The bonds granted to the Applicants were cancelled. The Applicants were aggrieved by the decision and have applied to this court to have the decision revised by this court.

In the case of the 1st Applicant, he states that he failed to attend court because of his health situation. He has annexed a copy of his medical report which indicates that he suffers from an ailment on his shoulder. He pleads with the court that his failure to attend court was not deliberate but was occasioned by his ill health. Given the chance, he would faithfully attend court until conclusion of his case. In the case of the 2nd Applicant, he similarly too states that he failed to attend court due to his ill health. He faults the trial court for failing to take into consideration the medical report that he had presented to court indicating that he suffered from hyperthyroidism and high blood pressure which necessitated constant medical attention. The 2nd Applicant explained that his failure to attend court was therefore not deliberate but due to the fact that he was prevented from attending court by his health situation.

During the hearing of the application, this court heard oral submission made by Mr. Ayuo for the Applicants and by Ms. Akunja for the State. Mr. Ayuo reiterated the contents of the application and the supporting affidavits. He explained that both Applicants had medical ailments which could not be treated while they were in remand custody. He urged the court to take into consideration the fact that the Applicants had earlier been granted bail. He conceded that both Applicants absconded from court and were taken to court after warrants of arrest that had been issued were executed. He pleaded with the court, on behalf of the Applicants, to take into consideration the Applicants’ health conditions and reinstate the bond terms that were earlier granted but were cancelled.

Ms. Akunja for the State opposed the application. She gave a narration of the court events that took place that ultimately led to the cancellation of the bonds that were granted to the Applicants. She submitted that the Applicants had persistently failed to attend court and had done so with a view to frustrating the trial of the case.  She urged the court not to be persuaded by the medical reports presented before court because some of the medical reports were established to be forgeries. Learned prosecutor submitted that the Applicants’ past conduct precluded this court from exercising discretion in their favour because the Applicants’ conduct in failing to attend court on the dates that trial was scheduled was deliberate and meant to frustrate the trial and conclusion of the case.

She submitted that the Applicants cannot be trusted to attend court due to their failure to attend court on their own accord. Both Applicants were brought to court upon the execution of the warrants of arrest issued by the court. She was emphatic that the Applicants were flight risk and would escape from the jurisdiction of the court if they are released on bail pending trial. The medical conditions of the Applicants can be managed by the prison authorities, and where there is need, they can be taken to Kenyatta National Hospital for further treatment. She urged the court to dismiss the application.

That the Applicants have the right to be released on bail pending trial is provided under Article 49(1)(h) of the Constitution. Indeed, the Applicants were released on bail pending trial before they absconded from court and had their bail cancelled. The Applicants have pleaded with the court to reinstate the bonds that were initially granted to them. They have explained that their failure to attend court was caused by their giving priority to their medical treatment. The State is opposed to the application essentially on the ground that the Applicants cannot be trusted to attend court if they are released on bail pending trial having absconded from court without sufficient reasons.

This court has carefully considered the facts of this application. In Republic –Vs- Danson Mgunya & Another [2010] eKLR, M.K. Ibrahim J (as he then was) held thus:

“As a matter of fact, all other criteria are parasitic on the omnibus criterion on availability of the accused to stand trial. Arising directly from the omnibus criterion is the criterion of the nature and gravity of the offence. It is believed that the more serious the offence, the great incentive to jump bail although this is not invariably true. For instance, an accused person charged with capital offence is likely to flee from the jurisdiction of the court than one charged with a misdemeanour, like affray. The distinction between capital or non-capital offence is one way crystallized from the realization that the atrocity of the offence is directly proportional to the probability of the accused absconding. But the above is subject to qualification that there may be less serious offences in which the court may refuse bail, because of its nature.”

The Applicants were required to attend court without fail when they were granted bail by the trial court. This court has perused the proceedings of the trial magistrate’s court. It was clear to this court the submission made on behalf of the prosecution is not off the mark when it was stated that the Applicants engaged in a pattern of behaviour whose ultimate aim was to frustrate and stymie the trial before the trial magistrate’s court. The Applicants absconded from court and were presented to the court after the police had executed warrants of arrest. If indeed the Applicants were genuine in their claim that they had been prevented from attending court on the particular scheduled date due to their ailments, what prohibited them from voluntarily attending court once their health situations improved?

It was clear to this court that the Applicants abused the licence given to them by the trial court to be out on bail pending the trial of their case. The fact that some of the medical reports that they have relied on to support their claim that they were ailing at the time of their failure to attend court are alleged to be forgeries is sufficient proof of their motive in not being ready to have the trial concluded before the trial magistrate’s court. Further, their claim that the ailments they are suffering from cannot be treated while in remand custody by prison authorities is not supported by evidence. Indeed, where necessary, the Applicants have been taken to Kenyatta National Hospital for further treatment.

This court is not persuaded that the Applicants’ application has merit and is certain that if the Applicants are released on bail pending trial, they will abscond from the jurisdiction of the court. Their past conduct precludes the court from exercising its discretion and making a determination in their favour. Their respective applications for reinstatement of their bond lack merit and are hereby dismissed. They shall remain in remand custody pending conclusion of their trial before the trial magistrate’s court. It is so ordered.

DATED AT NAIROBI THIS 6TH DAY OF DECEMBER 2017

L. KIMARU

JUDGE