Lenana & another v Republic [2022] KEHC 10842 (KLR)

Lenana & another v Republic (Miscellaneous Criminal Application E329 of 2021) [2022] KEHC 10842 (KLR) (Crim) (7 June 2022) (Ruling)

Neutral citation: [2022] KEHC 10842 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Criminal Application E329 of 2021

LN Mutende, J

June 7, 2022

Between

Dennis Titus Lenana

1st Applicant

Jackson Ngui Kisaa

2nd Applicant

and

Republic

Respondent

Ruling

1. On the March 15, 2021Dennis Titus Lenana, Jackson Ngui Kisaa and Patrick Muoki Mulu were arraigned before the Kibera Chief Magistrate Court following allegations of having committed various offences which included stealing five (5) motor-vehicles, and in the alternative handling stolen goods;Personation ( Jackson Ngui Kisaa); seven counts of having or conveying suspected stolen property (Jackson Ngui Kisaa)

2. In Criminal Case No. E619 of 2021, the three persons were arraigned on April 9, 2021 for stealing nine (9) motor-vehicles and in the alternative handing stolen property.

3. Having pleaded not guilty to all counts in E424 of 2021 an objection was raised to the applicants/accused being granted bail on the ground that they were facing other cases in different courts. However, the application was later reviewed and the accused persons were granted bond of Kenya Shillings one million (Ksh. 1,000,000/-) and in the alternative cash bail of Kenya shillings Five Hundred Thousand (Ksh. 500,000/-)

4. Subsequently, the cash bail in respect of Patrick Mwoki Mulu was reviewed to Kenya Shillings One Hundred thousand (Ksh. 100,000/-), following allegations of ailment.

5. In E619/2021 Each accused person was granted Bond of Kenya Shillings Five Hundred Thousand and in the alternative a cash bail of Kenya Shillings One Hundred Thousand (Ksh. 100,000/-).

6. These are the orders that prompted Jackson Ngui Kisaa and Dennis Titus Lenana to seek audience of this court. The order sought is for consolidation of Bond terms in both matters.

7. It is therefore the argument of the applicants that these matters having emanated from the same Police Station they should be consolidated and their co-accused’s bail terms having been varied and reviewed downward, they should also benefit from such orders.

8. The application is opposed by the State as it is neither an appeal nor Revision. The State through learned counsel Mr. Kiragu argues that prayers sought are an attempt to circumvent the law. That they are asking the court to sit as an appellate court over the Ruling of the trial court that declined to grant the order for consolidation. He called upon the court to decline to grant orders sought so that the applicants can either file an application for review or appeal the order.

9. I have carefully considered arguments of both the applicants and the learned State Counsel.

10. In E619 of 2020, the applicants herein applied for consolidation of Criminal Case No. E424 of 2021, Criminal Case No. 3769 of 2016 and E619 of 2020 which is a revelation that other than the two (2) matters that are before me, there is another matter Criminal Case No. 3767/2016 where the applicants herein have been indicted. The trial court declined to grant orders sought, but neither an application for Revision nor an Appeal has been proffered against the order.

11. This court has supervisory jurisdiction over the subordinate courts (see article 165 (6) (7) of the Constitution of Kenya, 2010 Section 362 of the Criminal Procedure Code (CPC).

12. Section 362 of the CPC Provides thus;The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court

13. In order for this court to intervene in a matter where revision has been sought, there must exist some illegality or irregularity that calls for revision.

14. In declining to grant the order sought the learned trial magistrate was of the view that the three matters were pending hearing in different courts, charges involved stealing of motor-vehicles such that the possibility of the applicants being charged with other offences could not be ruled out.

15. The applicants having not moved this court to exercise its inherent supervisory jurisdiction, there is nothing to suggest that bail terms granted were not in accordance with the law. The discretion exercised by the trial court in granting bail in different cases filed was done judiciously. It was not based on any incorrect factor that call for intervention by this court.

16. Therefore, the applications by both appellants fail and are accordingly dismissed.

17. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 7TH DAY OF JUNE, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantsMr. Otieno for ODPPCourt Assistant – Mutai