Republic v Abey [2023] KEHC 24860 (KLR)

Republic v Abey (Criminal Revision E003 of 2023) [2023] KEHC 24860 (KLR) (2 November 2023) (Ruling)

Neutral citation: [2023] KEHC 24860 (KLR)

Republic of Kenya

In the High Court at Kisii

Criminal Revision E003 of 2023

PN Gichohi, J

November 2, 2023

Between

Republic

Applicant

and

Abdiqafar Abdirashid Abey

Respondent

Ruling

1. By a Notice of Motion dated January 30, 2023 and brought under article 49, 50, 157, 159, and 165 (6) and (7) of the Constitution and section 123 (2) , 123A (1) , 362 and 364 of the Criminal Procedure Code, the applicant seeks orders:-1. Spent

2. That this honourable Court be pleased to call for the files in Republic vs Abdiqafar Abdirashid Abey (Kisii Chief Magistrate’s Criminal Case No E 100, E101 and E 102 all of 2023 to examine the records of the subject criminal proceedings therein for purposes of satisfying itself as to the correctness , legality and or propriety of the order relating to the bond terms attached to the release of the Respondent.

3. That this honourable Court be pleased revise and thereby enhance the bond terms on which the Respondent was released with due regard to the particular circumstances of the case and more particularly the total value of the subject matter of the offences in the criminal cases against him.

4. That the Court be pleased to issue any other orders that the ends of justice demand.

2. The applicant’s grievance arose after the respondent who was facing various charges of obtaining money by false pretences before the trial court being Kisii CMCR. Case No E 100, E101 and E 102 of 2023 was released on bond terms cumulatively being Kshs. 2,700,000/= as surety bond or a cumulative cash bail in the sum of Kshs. 400,000/-. The applicant’s issue is that considering that the total value of the subject matter was Kshs. 16,400,300/= and that the respondent had attempted to free the jurisdiction of the court to evade the charges, the bond terms were extremely so low and disproportionate in the circumstances.

3. In support of that Application is an Affidavit sworn by No 236629 C.I George Ochieng who is the Investigating Officer in the said cases. He depones that“while aware of the impending charges against him, the respondent was arrested as at the Wilson Airport as he attempted to leave the country already aboard Freedom Airline Registration No 5Y -FAR enroute the volatile EI Wak area of North Eastern Region , a fact that clearly indicated his intention to evade the charges and leave the jurisdiction of the trial court.”

4. He therefore termed this as proof of his being a flight risk. The Applicant therefore urges this Court to call for the said files, revise and enhance bond terms issued by the lower court.

5. The Respondent opposed the Application vide a Replying Affidavit sworn by Abdiqafar Abdirashid Abey on March 7, 2023 and filed through M/S G.M.Nyambati & Co. Advocates. He depones that he had entered into a business transaction agreement with the Complainants where the profits would be shared. However most businesses went under during Covid 19 pandemic period affecting this business too.

6. Terming the grant of bond a judicial discretion which the court exercises judiciously, he depones that the bond terms were granted after the court called for his pre- bail report from the probation officers. Further, he terms the Application res judicata in that the Prosecution raised the same issues before the trial court during plea taking and were declined. He depones that where bond terms have been issued, it is the accused person who ought to move the superior court for revision and not as purportedly done here by the Investigating officer.

7. Citing article 10 of theConstitution, he depones that the conduct of the DPP and the police is personal and that the Application was made in bad faith with intent to abuse the process of the court. He therefore depones that granting the Application would subject him to discrimination contrary to article 27 of the Constitution.

Submissions 8. Mr Ochengo for the Applicant did not file written submissions but chose to rely on the pleadings.

9. On his part, Counsel for the Respondent filed written submissions dated April 24, 2023. He submitted that the investigating officer is incapable of challenging the decision of the court to grant bail or bond. Further, Counsel submitted that the bail or bond is meant to ensure the accused person attends court as and when needed and the terms can only be reviewed if the accused person fails to attend court and explain the reason.

10. Emphasising of the discretionary powers of the trial court, counsel submitted that the said discretion has not been attacked for being unreasonable in any way. Terming this Application as an appeal that is not properly before the Court, counsel urged the Court to dismiss the Application and order that the Investing Officer and the Director of Public Prosecution to pay costs of the Application.

Determination 11. Having considered the material before this Court, it is clear that there is no dispute that the respondent was granted bond in the lower court. The applicant is not saying that the respondent should not have been granted bond but simply that the amount of bond as against the figures stated in the charges be reconsidered.

12. The issues for determination are:-1. Whether, the investigating officer has powers to challenge the decision of the trial magistrate.2. Whether this is a revision as known in law.

13. On the first issue, the respondent believes that “where bond terms have been issued, it is the accused person who ought to move the superior court for revision and not the investigating officer like in this case.” There is no law that provides that only an accused person can apply to this Court for review of bond terms. Any aggrieved party in a criminal case, whether the accused or the Director of Public Prosecution, can do so. Indeed article 157 (10) of the Constitution is specific on the powers of the DPP and provides that:“The Director of Public Prosecutions shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or functions, shall not be under the direction or control of any person or authority.”

14. These powers are replicated under sec. 6 of the Office of the Director of Public Prosecutions Act, 2013 which provides that:-“Pursuant to article 157 (10) of the Constitution, the director shall(a)not require the consent or authority for the commencement of criminal proceedings ;(b)not be under the direction or control of any person or authority in exercise of his powers or functions under the Constitution, this Act or any other written law; and(c)be subject only to the Constitution and the law.”

15. In this matter, it is obvious from the body of the Application that it is the Director of Public Prosecutions seeking revision of bond terms and not the Investigating Officer. The Investigating Officer’s Affidavit is in support of that Application and he swears it in his capacity as the Investigating Officer and not in his own personal capacity.

16. As to whether what is before this Court is a revision, it is a fact that High Court has supervisory jurisdiction over the subordinate courts and has powers under section 362 of the Criminal Procedure Code to :“…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.”

17. Further section 364 of the Criminal Procedure Code provides that:-(1)In the case of a proceeding in a subordinate court the record of which has been called for or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may—(a)in the case of a conviction, exercise any of the powers conferred on it as a court of appeal by sections 354, 357 and 358, and may enhance the sentence;(b)in the case of any other order other than an order of acquittal, alter or reverse the order.(c)in proceedings under section 203 or 296(2) of the Penal Code, the Prevention of Terrorism Act, the Narcotic Drugs and Psychotropic Substances (Control) Act, the Prevention of Organized Crimes Act, the Proceeds of Crime and Anti-Money Laundering Act, the Sexual Offences Act and the Counter-Trafficking in Persons Act, where the subordinate court has granted bail to an accused person, and the Director of Public Prosecution has indicated his intention to apply for review of the order of the court, the order of the subordinate court may be stayed for a period not exceeding fourteen days pending the filing of the application for review.”(2)No order under this section shall be made to the prejudice of an accused person unless he has had an opportunity of being heard either personally or by an advocate in his own defence: Provided that this subsection shall not apply to an order made where a subordinate court has failed to pass a sentence which it was required to pass under the written law creating the offence concerned.(3)Where the sentence dealt with under this section has been passed by a subordinate court, the High Court shall not inflict a greater punishment for the offence which in the opinion of the High Court the accused has committed than might have been inflicted by the court which imposed the sentence.(4)Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.(5)When an appeal lies from a finding, sentence or order, and no appeal is brought, no proceeding by way of revision shall be entertained at the insistence of the party who could have appealed.”

18. In this case, the bone of contention is the bail and bond terms issued to the respondent herein. It is worth emphasising that the granting of bond is a judicial function and hence discretionary. However, that discretion is guided by well laid principles including the nature and gravity of the offence and the circumstances under which the offence was committed.

19. Further, the purpose of bail or bond is to enable the accused person attend court while at the same time going on with his day to day activities but to ensure that he attends court whenever he is required to do so. In granting bond, the trial court should ensure that the bail and bond terms are not so low as to tempt the accused person to abscond. The terms should also not be so high that the accused may not afford thus giving the impression to a reasonable person that the intention of the court was to punish the accused before he is tried and found guilty of the offence.

20. Though bail and bond terms should be commensurate with the offence, it is not sufficient for the Investigating Officer to boldly state that the bond was manifestly low and unreasonable. The figures given for bail and bond should not be a mathematical calculation to arrive at a fraction of the value of the subject matter. The Investigating Officer ought to demonstrate how the trial magistrate , in exercise of her discretion, arrived at bail and bond terms that were irregular, erroneous or illegal.

21. If the respondent was arrested as he intended travel out of the country before he was arraigned in court for plea and hence a flight risk as argued by the applicant, that would have been a suitable ground in opposing the release of the respondent on bond, and for consideration by the trial court.

22. It is not disputed that the trial magistrate called for the pre-bail report before granting the accused bond terms. A pre-bail report serves as a guide to the court when considering whether to grant bail or not and if to grant the same, the terms and conditions thereof. It is therefore clear that the trial magistrate took into consideration relevant factors before granting bond.

23. The applicant’s arguments herein are an appeal disguised as a revision. If the appellant was aggrieved by that court’s discretion in granting terms of the stated sum as bail and bond, then recourse lay in appeal not revision. This Court finds no irregularity or illegality in the decision by the trial court to grant the said bond terms.

24. This court therefore finds no merit in the Application dated January 30, 2023. The same is hereby dismissed with no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KISII THIS 2ND DAY OF NOVEMBER, 2023. PATRICIA GICHOHIJUDGEIn the presence of:Mr. Ochengo for AppellantN/A for RespondentAphline- Court Assistant