Samuel Wanjau Maina v Republic [2022] KEHC 2138 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CRIMINAL APPLICATION NO.E416 OF 2021

SAMUEL WANJAU MAINA......................................................................APPLICANT

VERSUS

REPUBLIC...............................................................................................RESPONDENT

R U L I N G

1. The application herein is a Notice of Motion application dated 18th November, 2021, wherein the Applicant is seeking for orders that the court be pleased to review the Ruling issued in Milimani Criminal Case No.2064 of 2019 wherein his bond was cancelled.

2. The application is supported by an undated affidavit annexed thereto, sworn by the Applicant wherein he deposed that, he was charged with the offence of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code; he was released on bond of Kshs.50,000/= with an alternative of cash bail of Kshs.100,000/= after taking plea; on the hearing day there was a nationwide lockdown due to Covid-19 outbreak; he was unable to log in into virtual court and when he tried to access the court premises, he was turned away at the gate; he followed up on his matter after the lifting of the lockdown and found his bond had been cancelled; he made several applications before the trial court for reinstatement but they were dismissed; he is a family man with school going children and sole bread winner; he is in fear of his health in prison due to congestion and the Covid-19 Pandemic; he prays that his bond to be reinstated since he is willing to settle the matter.

3. The application was disposed through oral submissions made by the parties on 15th December, 2021.

4. In his submissions, the applicant stated that he was charged alone. However, on 30th March, 2020 his case was consolidated after which he requested for an adjournment which was granted in May, 2020 which time there was a lock down. The case proceeded in October, 2020 where he was locked down in the village. He submitted that when he returned in February, 2021 and followed up on his case, he found there was a warrant of arrest. He stated that when he attended court in May, 2021 he was placed in custody. He submitted that he has learnt his lesson and promises that he will never fail to attend court in the event his bond is reinstated.

5. The application was opposed by the learned state counsel, Ms. Ndombi. She stated that the reason the Applicant has given for not attending court is not sufficient since she was on duty and virtual court sessions proceeded. She was of the view that in the event the court is inclined to give the applicant a second chance and reinstate his bond then the conditions imposed should be strict.

6. I have carefully considered the application, the affidavit, the submissions by the parties and read through the proceedings of the trial court. I find that by the application, the Applicant is seeking to have the orders cancelling his bond revised.

7. The power of revision is donated to the High Court by Section 362 as read with Section 364of theCriminal Procedure Code.

8. Section 362 of theCriminal Procedure Code 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. Section 364 empowers the court to exercise the following powers:

(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.

(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”.

10. I have perused the proceedings in Criminal Case No.2064 of 2019 and established that the accused person, SAMWEL WANJAU aliasALI FARIS, jointly with others was charged with the following Counts:-

Count 1– Conspiracy to Commit a Felony contrary to Section 393 of the Penal Code.

The particulars are that:-

“On or before the 5th December, 2019, at unknown place within the Republic of Kenya, jointly with others not before court conspired to commit a felony namely, Stealing of Kshs.2,810,000/= (Two Million Eight Hundred and Ten Thousand Shillings) the property of Gulf African Bank Limited”.

Count II– Stealing contrary to Section 268(1) as read with Section 275 of the Penal Code.