Republic v Henry Njeru Mugo & David Kinyua Minjire [2017] KEHC 185 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CRIMINAL CASE NO. 10 OF 2013

REPUBLIC..........................................PROSECUTION

VERSUS

HENRY NJERU MUGO.....................1ST ACCUSED

DAVID  KINYUA MINJIRE............2ND  ACCUSED

R U L I N G

1.  This is an application dated 27/03/2017 by Ngondi Macera the surety of the 2nd accused David Kinyua Minjire seeking   for orders for release of his title deed for L.R. No.   Kyeni/Kigumo/ 7135 held in the court registry.  He also   seeks for discharge from being the surety of the accused   who is now at large.

2.  In the supporting affidavit, the applicant states that he stood surety for the 2nd accused for a bond of Shs.100,000/= and deposited his title deed as a surety.  After sometime the accused brought  the title deed to the surety at home. The applicant did not understand how  the document was released to the accused by the court  registry.

3.  The applicant was later summoned to the registry due to   the mysterious disappearance of the security.  He surrendered the title deed to the in-charge of the registry. The accused denied before the Deputy Registrar that he is the one who took the title deed to the applicant.

4.  The Deputy Registrar on application by the applicant released him from the responsibility as a surety.  The 2nd  accused was still on bond and was to abscond later. The matter was referred to the District Criminal Investigation Officer (DCIO) who recorded statement.

5.  The prosecution obtained a warrant of arrest against the   accused but were not successful in executing it.  The case against him was withdrawn under Section 87(a) of the Criminal Procedure Code.  This case is still pending.

6.  At the time the Deputy Registrar discharged surety, the 2nd accused was supposed to be remanded in custody pending replacement surety.  Without any explanation, the surety was discharged and th accused left free.  The trend of attendance in court prior to the absconding was that he was present this time and absent  the next date. This was   the period the DR  was mentioning the matter in an attempt to sort out the issue of surety.

7.   The applicant was charged with stealing the title deed in CM Criminal case No. 493 of 2016 and the charges rejected by the court under Section 89(a) of the Criminal Procedure Code thereby discharging him.  The magistrate rightly predicted that the case was poorly investigated since the culprits who released the title from the registry     to the end accused had not been charged.

8.  With the foregoing history, the court would continue holding the title deed of the surety in vain.  Returning it to the court registry was an act of good faith since he could not understand how it was released to the accused to bring it to him.

9.  I therefore allow the application in terms of prayer 2.

10. It is hereby so ordered.

DATED, DELIVERED AND SIGNED AT EMBU THIS 2ND DAY OF AUGUST, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Ms. Ndorongo for the surety/applicant