Mwaura v Republic [2024] KEHC 3337 (KLR)

Mwaura v Republic (Criminal Revision 12 of 2024) [2024] KEHC 3337 (KLR) (8 April 2024) (Ruling)

Neutral citation: [2024] KEHC 3337 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Revision 12 of 2024

DR Kavedza, J

April 8, 2024

Between

Paul Kanina Mwaura

Applicant

and

Republic

Respondent

Ruling

1. The applicant is charged before the subordinate court with the offence of robbery with violence contrary to section 296 (2) of the Penal Code. Before the trial court, he applied and was admitted to a bond of Kshs. 250,000 with a surety of a similar amount.

2. He filed the present application seeking revision of the bond terms. He prayed that this court substitute the bond terms granted with a bond of Kshs. 100,000 which he can afford. The application is premised on the grounds on the face thereof and supported by his affidavit. The averments made are that he is the sole breadwinner in a family of one wife and two children. The bond terms set by the court are too stringent. He is ready and willing to abide by the terms set by the court.

3. The constitution specifically requires under Article 49 (h) of the Constitution that the terms of bail to be attached to an accused who is released on bail shall be reasonable. Besides the exceptions limiting the right to bail under section 123A of the Criminal Procedure Code, Article 49 (h) of the Constitution places the burden of proof on the state to demonstrate compelling reasons.

4. The Judiciary Bail and Bond Policy Guidelines of 2015 have provided parameters to assist the court in exercising discretion judiciously. With respect to bail and bond, they require that the court in granting bail should consider the seriousness of the offence, the strength of the case, interference of witnesses, failure of the accused to attend, or where the accused is charged with another case, the need to protect the victim(s), the security and safety of the accused, the likelihood of absconding from the jurisdiction of the court and other factors which must be weighed by the court in the interest of justice. Such an exercise of discretion requires a wholistic approach and the court must, in close circumspection, take to account the circumstances of the case and the accused person individually.

5. In granting bail, the court must also ensure that bail or bond terms must not be excessive or unreasonable and should not be far greater than what is necessary to ensure or guarantee the accused person's appearance before the court. Where this is the case, it would be tantamount to a denial of bail, a right that is enshrined in the Constitution and the Criminal Procedure Code as outlined above. This position was expounded in the case of Taiko Kitende Muinya [2010] e-KLR.

6. The Bail and Bond Policy Guidelines on page 9 paragraph 3. 1. (d) underpins the right to reasonable Bail and Bond terms. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case. The above position has been enunciated in various decisions by the courts as in the case of Andrew Young Otieno vs. Republic (2017) eKLR.

7. The court must however ensure that the bail or bond terms must not be so low an amount that would make it easy for the accused to be tempted to forfeit the same and abscond court. Whatever the court in its discretion grants should also be commensurate to the offence committed as already stated. In the present case, the accused was charged with offence of robbery with violence contrary to section 296(2) of the Penal Code.

8. I have considered the charge the 2nd applicant is facing, the likely sentence to be imposed if she is found culpable. Taking all these factors into account, I am of the view that the bond terms imposed by the trial magistrate were not harsh and excessive.

9. The upshot of the above analysis is that the application for review of the bond terms is found to be lacking in merit and is dismissed.Orders accordingly.

RULING DATED AND DELIVERED VIRTUALLY THIS 8TH DAY OF APRIL 2024. .............................D. KAVEDZAJUDGE