Muinde Muoki v Republic [2017] KEHC 9786 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CRIMINAL DIVISION

MISC. CR. APPLICATION NO. 337 OF 2017

MUINDE MUOKI…………APPLICANT

VERSUS

REPUBLIC ……………RESPONDENT

RULING

I have looked at the trial court record.  I have seen that the accused only absented himself on 6/7/2017.  He has been at large now for four months plus. Considering that the security for bond is land which is a valuable asset, it is prudent that the trial court gives the surety more time to try and track the accused.

It is also evident that the surety cooperated with the court.  He heeded the court summons when he was requested to appear in court to explain what efforts he had made in trying to trace the accused.  His answer was that since the accused’s wife had been traced, with the help of the investigating officer, he had hoped to trace the accused.  After one and a half months, the surety still hoped that the accused’s wife would report to Pangani Police Station that she had tracked her husband.  This explanation was given on 2/10/2017.  The court did not accord the surety more time as he had requested.  Instead, it directed that the land be sold by public auction if the surety would not meet/pay the amount of bond of Kshs. 1,000,000/=.  A further mention was set for 31/10/2017. On this date, the surety was present.  He explained that he still could not trace the accused.  The court then considered that he be “detained for one month to avail the accused.”This was clearly erroneous, firstly, because the court had already commenced the process of realizing the security which issue it failed to address on 31/1/2017.  Secondly, it failed to take into account that the surety had all through cooperated with the court and there was no indication that he was deliberately failing to avail the accused.  Thirdly, the surety had not objected to the sale of the land.

On these grounds, the order directing the detention of the surety was totally unwarranted.  It was improper and not based on the facts of the case.

Before me is an 87 years old man who innocently stood surety for his son who instead had let him down. There is no reason why he should be detained in prison whereas he deposited title to his land as security.  The trial court should continue with the process of realizing the security and should order that the surety cooperates in this exercise.

I accordingly set aside the order of the learned trial magistrate ordering the detention of the Applicant for one month.  I substitute it with an order that he be forthwith set free. I further order that he cooperates with the trial court in its process of either tracking the accused or realizing the security for bond.  It is so ordered.

Dated and Delivered at Nairobi this 13th day of November, 2017

G.W. NGENYE-MACHARIA

JUDGE

In the presence of

1. Odongo for the Applicant

2. M/s Akuja for the Respondent.