Lenaisura v Director of Public Prosecutions [2023] KEHC 25551 (KLR)

Lenaisura v Director of Public Prosecutions (Criminal Revision E293 of 2023) [2023] KEHC 25551 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25551 (KLR)

Republic of Kenya

In the High Court at Meru

Criminal Revision E293 of 2023

TW Cherere, J

November 16, 2023

Between

Julius Lenaisura

Applicant

and

The Director of Public Prosecutions

Respondent

Ruling

Background 1. Appellant was on 17th March, 2023 charged with various counts in Isiolo MCCR Case No. E125 OF 2023 which was consolidated with Isiolo MCCR Case No. E124 Of 2023 and E126 OF 2023.

2. The trial court record demonstrates that on 31st March, 2023, the case was fixed for hearing on 19th July, 2023.

3. Subsequently on 03rd August, 2023, the case was mentioned and fixed for hearing on 03rd August, 2023.

4. On 19th July, 2023, a warrant of arrest was issued and an order was made for forfeiture of cash bail. Applicant appeared in court on 03rd August, 2023 but the trial court was not sitting and when he appeared again on 09th August, 2023, his counsel’s explanation that the confusion in the hearing dates was caused by the court issued new bond terms on the ground that the cash bail had already been forfeited.

5. At the hearing, Ms. Rita for the Respondent conceded the application on the ground that Applicant was misled by the court as to the hearing date of his case.

6. I have considered the notice of motion dated 17th August, 2023 supported by an affidavit sworn by Loice Wangechi Gikaara, counsel for the Applicant on even date and I regret that Applicant has to suffer the consequences of the court’s blunder that punished him for its own inadvertence in fixing his matter for hearing on two different dates.

7. That Applicant has to lose his cash bail of KES. 500,000- and be directed to offer an alternative bond is against the rules of natural justice and tramples on his constitutional right to affordable bond terms.

8. From the foregoing, I find this is a proper case for this court to exercise its revisionary powers contained under Section 362 through to 366 of the Criminal Procedure Code (cap.75) Laws of Kenya.

9. Consequently, I find that the notice of motion dated 17th August, 2023 has merit and it is ordered:1. The trial magistrate’s order dated 19th July, 2023 in which a warrant of arrest for the Applicant and Applicant’s cash bail was forfeited is set aside in its entirety.2. The cash bail of KES. 500,000- if already forfeited shall be refunded to the Accused person if he has already posted a new bail3. If Applicant has not posted a new bail, he shall be released from custody on the initial bond terms pending reinstatement of the KES. 500,000- cash bail

DELIVERED AT MERU THIS 16TH DAY OF NOVEMBER 2023T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant -  Ms. WangechiFor Respondent -  Ms. Rita Rotich (PC-1)