Ndurumo v Republic [2022] KEHC 13811 (KLR)

Ndurumo v Republic (Criminal Revision E029 of 2021) [2022] KEHC 13811 (KLR) (6 October 2022) (Ruling)

Neutral citation: [2022] KEHC 13811 (KLR)

Republic of Kenya

In the High Court at Kiambu

Criminal Revision E029 of 2021

MM Kasango, J

October 6, 2022

Between

Samuel Gatere Ndurumo

Applicant

and

Republic

Respondent

(Being a Criminal Revision Application from the Order of the Chief Magistrate’s Court at Kiambu (Hon. P. Gichohi, CM) in Criminal Case No. 1651 of 2019 dated 10th of September, 2020)

Ruling

1. By a notice of motion application dated 30th March, 2021, this Court is requested to revise the trial court’s order made on 16th September, 2020 ordering the applicant to forfeit cash bail of Kshs.2,000,000.

2. The applicant is undergoing a trial before the Kiambu Chief Magistrate’s Court. He was released pending the trial on cash bail of Kshs.2,000,000. On 16th September, 2020 and on other occasions, the applicant failed to attend his trial. This resulted in the trial court on 10th September, 2020 making the following order:-“Warrant of arrest lifted. Cash bail forfeited to the state.”

3. The procedure for ordering forfeiture of cash bail is set out in Section 131 of Criminal Procedure Code. That procedure was considered in the case Patrick Gitari Mwiandu vs. Republic (2017) eKLR thus:-“On the second issue, the order of forfeiture of the cash bail, it is the requirement of Section 131 of the Criminal Procedure Code that the court will first make an inquiry of the accused or his surety to show cause why his recognizance should not be forfeited. The order forfeiting his cash bail cannot therefore be made simultaneously with the order cancelling bail/bond.The accused as well as the surety is required to be granted opportunity, to a hearing, to show cause why his bail/bond should not be forfeited to the state. Failure to do so in a grave breach of the rules of natural justice.”

4. The section requires a person be afforded an opportunity to show cause why forfeiture should not be ordered. It will be noted from the reproduced proceedings of 10th September, 2020 above the applicant was not afforded that opportunity. However on 3rd March, 2021 the applicant, through his learned counsels extensively addressed the trial court giving the reason why the applicant failed to attend court. The trial court on hearing that representation by a Ruling of 3rd March, 2021, considered the submissions made by applicant’s counsel as counsel for DPP and determined that the order of forfeiture would not be reversed.

5. In my considered view the applicant was thereby given ample opportunity to show cause why the forfeiture should be reversed. He was given opportunity to be heard. It follows that there is no basis for this Court to exercise its revisionary power against the order of the trial court. There is no irregularity since the applicant was granted hearing.

Disposition 6. Following the above finding, the Notice of Motion application dated 30. 3.2021 is dismissed.

7. This file shall henceforth be closed.

RULING DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant : Mourice/JuliaMs. Gathua for applicantFor the State : - Mr. Kasyoka presentRuling delivered virtually.MARY KASANGOJUDGE