Oketch v Republic [2022] KEHC 10065 (KLR)

Oketch v Republic (Miscellaneous Application E318 of 2021) [2022] KEHC 10065 (KLR) (Crim) (21 July 2022) (Ruling)

Neutral citation: [2022] KEHC 10065 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Criminal

Miscellaneous Application E318 of 2021

LN Mutende, J

July 21, 2022

Between

Bernard Ogutu Oketch

Applicant

and

Republic

Respondent

Ruling

1. Bernard Ogutu Oketch, the Applicant, was charged with the offence of robbery with violence contrary to Section 296 (2) of the Penal Code, jointly with three (3) others. The allegation according to the particulars of the offence is that while they were armed with dangerous weapons, namely pistols they robbed the complainant of cash USD 150,000 an equivalent of Kenya Shilling Fifteen Million (Ksh 15,000,000/-) and at the time of the robbery, they threatened to shoot him.

2. Upon arraignment the applicant denied the charge and was granted bond of Kenya Shillings Two Million (Ksh 2,000,000/-) with a surety or cash bail of Kenya Shillings Seven Hundred Thousand (Ksh 700,000/-).

3. Subsequently, an application was made before the trial court where the cash bail was reviewed downwards to Kenya Shillings Five Hundred Thousand (Ksh. 500,000/-).

4. Aggrieved by the decision of the court, the applicant seeks review on the ground that he cannot raise a surety for the bond given in the sum of Kenya Shillings Two Million (Ksh 2,000,000/-).

5. He swore an affidavit in support of the application where he deposed that on 10th December, 2020, he was granted bond of Kenya Shillings Two Million (2,000,000/-) with an option of cash bail and he cannot raise a surety as his ancestral land does not have a title deed. He called upon this court to consider what is provided by Article 49(1)(h) of the Constitution and review the bail to Kenya Shilling One Million (Ksh1,000,000/-) which would be reasonable and affordable.

6. The application is opposed by the State/Respondent through Ms. Kibathi, learned Counsel, who argues that the background of the applicant is unknown and his antecedents are unknown. That the offence calls for stringent bail terms.

7. Following the order of the court, a social inquiry was conducted by the Probation Officer which established that the applicant hails from a humble background and the victims were not opposed to the applicant accessing his constitutional rights.

8. The prayer for review of sentencing is brought pursuant to Section 362 of the Criminal Procedure Code (CPC) that provides as follows: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.

9. The alluded to provision of the law grants this court power to intervene where there is an irregularity in the subordinate court order or finding. I do appreciate the fact of granting bond being a discretionary power of the trial court, power that should not be interfered with unreasonably.

10. In the case of Kirit Bhangwanda Kanabar vs. DPP & Another (2018) cited in Ramadhan Iddi Ramadhan & 5 others vs. Republic [2019] eKLR the court held that:“It is important to distinguish between the nature of the offence as a category and the seriousness of it as attached by the legislature in its various cluster of punishment in default. I am reminded to observe that trial courts should not take the phase seriousness of the offence on the face value. It is an inquiry to be based on the defined offence and particular facts as laid down by the state. There is no doubt my reading of the Constitutional and statutory provisions on bail point to the court to give a particular weight to the various factors and principles governing bail as illustrated in the bail and bond policy of the Judiciary. The independence of the trial court in directing the reasonable conditions applicable in each case has always been a reflection of the provisions in Article 49(h) of the Constitution and Section 123 and 124 of the code.”

11. It is also important for the accused to move the trial court for review of bond terms before approaching the High Court.

12. In the case of Harish Mawjee & another vs. Republic [2020] eKLR, it was stated that:“There are certain overarching principles that govern the administration of bail and bond by Courts. First of all, courts have sole discretion to give determinate bond terms and they can impose a combination of terms including supervision of accused released on bail if found necessary. Secondly, bond terms should not be arbitrary, but the court must consider the relevant factors affecting issuance of bond including penalty of offence and the accused’s ability to meet the bond terms. Thirdly, the bond terms should not be excessive or unreasonable. Fourthly, an accused has right to seek review of bond terms from trial court or high court or appeal..…… an accused can apply for review of bond terms given by the trial court. The application should be made before the trial court which granted the bond. If, however the accused is still aggrieved by the decision of the trial court, he can still approach the higher court for relief.”

13. In the case of Republic vs. Diana Suleiman Said & another [2014] eKLR Muriithi J was of the view that the court does not become functus officio on a first application for bond, that Section 123 of the CPC (as amended) following the Constitution of Kenya, 2010 makes bail available at all times.

14. Bail review means,“A process of re-examination of bond terms to an accused person who has been unable to post bail before the same court.” See Blacks laws dictionary.

15. The applicant did not seeking review of bail/bond before the trial magistrate. The record of the trial court indicates that the applicant’s application for bond was allowed albeit with conditions. In granting bail, the court ought to be guided by the Bail and Bond Policy Guidelines which underpins the right to reasonable bail or bond since an accused person is presumed innocent until proven guilty. But, 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.

16. The law provides that the court should be concerned with securing the attendance of the accused during trial.

17. I have noted that bail review can be sought before the trial court at any time in the course of trial and more so when circumstances change from the time the order is made. In the premises, I restrain myself from intervening since the applicant has not demonstrated existence of any irregularity that occurred in the course of proceedings before the subordinate court. The application for reconsideration of bail may be made before the trial court.

18. It is so ordered.

***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 21ST DAY OF JULY, 2022. L. N. MUTENDEJUDGEIN THE PRESENCE OF:ApplicantMs. Odour for DPPCourt Assistant – Mutai