MAXIMILLAN NGANDA vs REPUBLIC [2004] KEHC 1784 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

APPELLATE SIDE

CRIMINAL APPEAL NO. 61 OF 2004

(From Original Conviction and Sentence in Criminal Case No.

2229 of 2002 of the Senior Resident Magistrate’s Court’s at

Machakos: S. M. Kibunja Esq. on 4. 3.2004)

MAXIMILLAN NGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

REPUBLIC ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

J U D G E M E N T

The appellant is one Maximillan Nganda who had stood surety for accused 1 in Cr.C. 2229/2002. The said accused absconded. On 26. 4.2003 he was allowed time to look for the said accused 1. After some mentions the surety also failed to attend court. By then the court had released him on bond. He was brought to court on 21. 1.2004 under arrest. He told the court that he had failed to get accused and admitted having failed to attend court. He did not have the 20,000/- for his own bond and 20,000/- which he had bound himself to pay when he stood surety. The court then sentenced him to serve 6 months imprisonment Contrary to Section 131 (4) Criminal Procedure Code. The appellant is dissatisfied with this order against which he appeals.

The proceedings do show that after the appellants arrest he conceded that he could not trace the accused nor could he be able to pay the recognisance. That was an explanation given by the appellant which amounts to him having shown cause as to why he could not produce the 1st accused or pay the recognisance.

The court then went ahead to sentence him to a prison term. In accordance with Section 131 Criminal Procedure Code. That was wrong. If sufficient cause is not shown by appellant the first step to be taken would have been to order the appellants property to be attached in accordance with Section 131 (2) Criminal Procedure Code and if the penalty was not paid or recovered by attachment then the magistrate would have invoked Section 131 (4) Criminal Procedure Code to sentence the appellant to prison. Appellants conduct of absconding may have contributed to how the magistrate decision in taking this drastic measure of imprisoning him. He was behaving just like the 1st accused had. I do agree that the court acted excessively by not considering the procedure in dealing with provisions of Section 131 Criminal Procedure Code.

I do allow the appeal and order that the said sentence be set aside.

It was noted that in the lower court the magistrate on his own motion went ahead to order the said case withdrawn under Section 87 (a) Criminal Procedure Code pending warrant of arrest. The magistrate had no jurisdiction to order a withdrawal of a case under Section 87 (a) Criminal Procedure Code unless an application to withdraw had been made by the prosecutor or it is made on the instructions of the Attorney General. This court accordingly revises the order of the magistrate under Section 362 Criminal Procedure Code made on 4. 3.2004 causing the case to be withdrawn under Section 87 (a) Criminal Procedure Code. The case is ordered reinstated.

The appellant has so far served 3 months out of the sentence of 6 months meted. The appellant was given the maximum sentence which I believe was excessive under the circumstances and I will order that the appellant be set free forthwith unless otherwise lawfully held.

Right of appeal 14 days.

Dated, read and delivered at Machakos this 4th day of May 2004.

R. V. WENDOH

JUDGE

Read, dated and signed in the presence of Mr. Kizito for state.

R. V. WENDOH

JUDGE