Republic v Ogola [2023] KEHC 25690 (KLR)

Republic v Ogola (Criminal Revision E102 of 2023) [2023] KEHC 25690 (KLR) (16 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25690 (KLR)

Republic of Kenya

In the High Court at Garsen

Criminal Revision E102 of 2023

M Thande, J

November 16, 2023

Between

Republic

Applicant

and

Benta Akinyi Ogola

Respondent

Ruling

1. By a letter dated 30. 10. 23, the Applicant seeks revision of orders issued by the Chief Magistrate’s Court in Trafficking Case No. 838 of 2023: R v Benta Akinyi Ogolla. The Applicant states in the said letter that the accused in that case was charged with the offence of trafficking in narcotics contrary to Section 4(a)(ii) of the Narcotics Drugs and Psychotropic Substances (Control) Act No. 4 of 1994. The Applicant further states that the accused is similarly charged with the same offence in Malindi Criminal Case No. E352 of 2022. The prosecution objected to the release of the accused on bail vide an affidavit sworn by Cpl. Richard Mwadime, the investigating officer, who averred that the accused had the propensity to commit similar offences and would jeopardize investigations. The court nevertheless granted the accused a bond of Kshs. 1 million in its ruling on 27. 10. 23. The Applicant being aggrieved by the said order, has invoked the jurisdiction of this Court under Section 362 as read with Section 364(1)(b) of the Criminal Procedure Code and seeks orders of revision from this Court.

2. The Application is opposed by the Respondent vide submissions dated 6. 11. 23. It was submitted that the Application for revision ought to have been made before the trial court which has jurisdiction in the first instance. As such, this Court lacks jurisdiction to entertain the same. The case of Victor Kiprono Ngeno v Office of the Director of Public Prosecutions [2021] eKLR, was relied on, where Lagat-Korir, J. considered it procedural that an application for review ought to have been made in the trial court in the first instance and that a revision or appeal to the High Court would follow upon dissatisfaction. It was further submitted that the Applicant is calling upon the Court to exercise its jurisdiction under Section 362 of the Criminal Procedure Code on grounds of correctness of proceedings, legality, propriety of any finding, sentence or order recorded or passed and the irregularity of proceedings.

3. It was further contended that these are not available to this Court but first lie at the trial court. In light of the foregoing, the Respondent submitted that the present Application for revision is fatally devoid of merit for failure to follow the procedure laid down. Citing the case of Speaker of the National Assembly v James Njenga Karume [1992] eKLR, it was argued that where a clear procedure for redress is prescribed by the Constitution or a statute, that procedure should be strictly followed.

4. In the arguments set out in the letter seeking revision, the Applicant contends that under the cited provisions, this Court has the requisite jurisdiction to hear and determine the application for revision. Reliance was placed on the case of Republic v Lina Mkunde David Kiritta [2008] eKLR in which Ojwang, J. (as he then was) restated the jurisdiction of the Court 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. The Applicant further cited the case of Joseph Nduvi Mbuvi v Republic [2019] eKLR in which Odunga, J. (as he then was), stated that the object of the revisional jurisdiction of this Court is to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with.

5. The supervisory jurisdiction of this Court over subordinate courts has its underpinning in the Constitution of Kenya, 2010. Article 165 makes provision for the High Court. Clauses (6) and (7) thereof provide as follows:(6)The High Court has supervisory jurisdiction over the subordinate courts and over any person, body or authority exercising a judicial or quasi-judicial function, but not over a superior court.(7)For the purposes of clause (6), the High Court may call for the record of any proceedings before any subordinate court or person, body or authority referred to in clause (6), and may make any order or give any direction it considers appropriate to ensure the fair administration of justice

6. In exercise of its supervisory jurisdiction, this Court is empowered to call for the record of proceedings in such subordinate courts, and make and give appropriate orders and directions as it deems necessary to ensure the fair administration of justice.

7. To give effect to this provision, the Criminal Procedure Code elaborates the purpose of calling for the record of proceedings in subordinate courts by this Court, which is to satisfy itself as to the correctness, legality or propriety of any finding or order. Section 362 of the Criminal Procedure Code provides:The High Court may call for and examine the record of any criminal proceedings before any subordinate court for the sentence or order recorded or passed, and as to the regularity of any proceedings of any such subordinate court.

8. Section 364 confers upon this Court the power of revision as follows: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 Panel 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:3. 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.4. 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.5. Nothing in this section shall be deemed to authorize the High Court to convert a finding of acquittal into one of conviction.6. 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.

9. As can be seen from the foregoing, the power of this Court to call for the record of proceedings and examine the record is anchored both in statute and the Constitution. There is nothing in the cited provisions that limit the power of this Court. A party may thus seek revision orders without first seeking the same in the lower court. In the case of Harish Mawjee & another v Republic [2020] eKLR, Lesiit, J. (as she then was) considered the principles that govern the grant of bail and bond and the terms thereof and stated:7. 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 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.

10. I concur with the finding of the learned Judge that review of bond terms may be sought from trial court or high court or appeal. The requirement is disjunctive and a party seeking review of bond or bond terms may do so from the trial court or from this Court. This is perhaps the reason why Lagat-Korir in the case of Victor Kiprono Ngeno (supra) went on to grant revision orders notwithstanding the same had not been sought in the trial Court. The learned Judge stated:16. Following the above, I consider it procedural that an application for review ought to have been made in the trial court in the first instance and that a revision or appeal to the High Court would follow upon dissatisfaction. Be that as it may, I now consider the grounds set out in the Application within the parameters of Section 362 of the Criminal Procedure Code for incorrectness, illegality or impropriety.

11. I associate with the sentiments expressed by the learned Judge and find that this Court has the requisite jurisdiction to entertain the Application for revision before it.

12. I now turn to the issue as to whether the accused’s bond should be cancelled. The Applicant submitted that there were compelling reasons to deny the accused bond as trafficking in narcotics, in particular heroin of high value is her specialty. Further that it was not disputed that she had a similar case pending before Court No. 5. As such, the trial Court should have denied her bond as she was undeserving of the same. It was submitted that under Article 49(1)(h) of the Constitution, bail may be denied where there are compelling reasons.

13. The Applicant further relied on the case of Republic v Lucy Njeri Waweru & 3 others [2013] eKLR in which Muchemi, J. listed the established principles for consideration by the court in an application for bond. Also relied upon is the Kenya Judiciary’s Bail and Bond Policy Guidelines, March 2015. The Applicant urged the Court to exercise its powers and call for the lower court file and reverse the orders granting bond.

14. For the Respondent, it was submitted that bail is a constitutional right and that the decision to grant or deny bail is in the discretion of a trial court, which can only be interfered with if exercised in a manner that is not judicious. (see Shah Mbogo and Another v Shah [1968] EA 93). Further that the cardinal point in granting bail is to set such conditions as will ensure court attendance by the accused person for trial. Reliance was placed on the case of Republic v Lampat Letongoros & 2 others [2013] eKLR. It was further submitted that having another pending criminal case is not a ground for the court to take away the accused’s constitutional presumption of innocence and right to bail. Additionally, that the trial court heard arguments by the prosecution in this regard and correctly found that the accused was entitled to bail. Further that the Applicant has not demonstrated that the trial court misdirected itself and arrived at the wrong decision, or that it was clearly wrong in the exercise of its discretion. Furthermore, the Respondent contended that the Applicant has failed to show which of the guidelines set out in the case of Moses Kasaine Lenolkulal v Republic [2019] eKLR that the trial court failed to take into account. In conclusion, it was submitted that the fact that the Respondent has a similar pending criminal case is not a ground for revision but appeal. The Court was urged to dismiss the Application.

15. The purpose of the revision jurisdiction of this Court as set out in Section 362 of the Criminal Procedure Code, is to call for and examine the record of any criminal proceedings before any subordinate court for the sentence or order recorded or passed, and as to the regularity of any proceedings in any such subordinate court. For this Court to exercise its revision powers in favour of an applicant, it must be demonstrated that the proceedings leading to the decision under challenge were irregular. The Court may thus examine the record to ascertain the regularity of the proceedings leading to any sentence or order made by such court. Thereafter, under Section 364(b) this Court may alter or reverse any order made, in order to correct manifest irregularities or illegalities.

16. In this regard, I concur with the holding in Joseph Nduvi Mbuvi v Republic [2019] eKLR, where Odunga, J. (as he then was) considered the import of the revision jurisdiction of this Court and stated:In my considered view, the object of the revisional jurisdiction of the High Court is to enable the High Court, in appropriate cases, whether during the pendency of the proceedings in the subordinate court or at the conclusion of the proceedings to correct manifest irregularities or illegalities and give appropriate directions on the manner in which the trial, if still ongoing, should be proceeded with. In other words, the High Court’s revisionary jurisdiction includes ensuring that where the proceeding in the lower court has been legally derailed, necessary directions are given to bring the same back on track so that the trial proceeds towards its intended destination without hitches. Not only is the jurisdiction exercisable where the subordinate court has made a finding, sentence or order but goes on to state that it is also exercisable to determine the regularity of any proceedings of any such subordinate court as well.

17. The Applicant’s reason for seeking revision orders as I understand it is that the trial Magistrate ought not to have granted bond to the Respondent, because she has another similar criminal case pending before court. I have carefully looked at the proceedings leading to the grant of bond to the Respondent. The record shows that there was an affidavit sworn on 16. 10. 23 by Cpl. Richard Mwadime opposing bond/bail on this very ground. The issue of the Respondent having another similar pending criminal case was argued in court in the application for bond. In her ruling, after considering the rival submissions the learned Magistrate stated that she did not find any compelling reason to deny the Respondent bond, and in exercise of her discretion proceeded to grant the Respondent bond. Both the prosecution and the defence were represented by counsel and were granted an opportunity to be heard. The affidavit opposing bond was also considered by the learned Magistrate.

18. A reading of the Application for revision will show that the Applicant has not stated that there was any irregularity or illegality in the proceedings that need to be corrected. It is the ultimate decision that the Applicant is unhappy with.

19. Further, the jurisdiction of the court to grant bond is discretionary. After considering the rival submissions, the trial Magistrate exercised her discretion and granted bond to the Respondent. It is now well settled that appellate courts must exercise restraint in interfering with judicial discretion. In the case of Mbogo v Shah [1968] EA 93 where the Court of Appeal considered an invitation to interfere with the exercise of judicial discretion and stated:[A] Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”

20. Duly guided by the holding by the Court of Appeal, I find that in the matter before me, there is nothing to show that the trial Magistrate in exercising her discretion, misdirected herself in some matter thereby arriving at a wrong decision. Looking at the case as a whole, it is not manifest that the trial magistrate was clearly wrong in exercising her discretion in granting as she did, bond to the Respondent, thereby occasioning a miscarriage of justice. In the absence of any manifest irregularity or illegality in the proceedings and decision therefore, I find no basis for faulting the learned Magistrate for granting bond to the Respondent.

21. In light of the foregoing, the Application for revision dated 30. 10. 23, being devoid of merit, is hereby dismissed.

DATED AND DELIVERED IN MALINDI THIS 16TH DAY OF NOVEMBER 2023. M. THANDEJUDGEIn the presence of: -…………………………………………………………… for the Applicant…………………………………………………………… for the Respondent……………………………………………………..…….. Court Assistant