Taziana Rwamb A Mosongo v Republic [2017] KEHC 765 (KLR)
Full Case Text
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CRIMINAL MISC. APPLICATION NO. 21 OF 2017
TAZIANA RWAMB A MOSONGO....................APPLICANT
VERSUS
REPUBLIC....................................................... RESPONDENT
R U L I N G
1. This is a ruling on the application dated 18/1/2017 seeking for review of bail/bond terms made by the Embu Chief Magistrate on 4/10/2017 and of further orders made by the same court on 12/10/2017 in CM Criminal case No. 929 of 2017.
2. The Court in pursuance with prayer 2 called for the criminal case file No. 929 of 2017 which was consolidated with criminal case No. 855 of 2017. The applicant herein is the 2nd accused in the consolidated case which retained court file number 855 of 2017 after consolidation.
3. The applicant states that he was granted stiff bond terms of bond of Kshs.400,000/= with one surety and in the alternative release on cash bail of Sh.100,000/= on 4/10/2017. The applicant through his counsel Mr. Mugambi Njeru applied for review of the bond terms before the Chief Magistrate on 12/10/2017 on grounds that his client was unable to raise surety or the amount cash bail set by the court earlier. This application for review was declined and this gave rise to this application.
4. The application was opposed by the respondent on grounds that the applicant wanted to be released on cash bail of Kshs.20,000/= which was not sufficient to guarantee his attendance to court for the trial. The respondent further stated that the bail terms have since been reduced to Kshs.100,000/= with a surety which is reasonable in the circumstances and ought to remain as such.
5. I have looked at the consolidated file No.855 of 2017. The 1st accused was first released on bond of Kshs.200,000/= with one surety by Hon. V. O. Nyakundi Senior Resident Magistrate on 12/9/2017 after taking plea.
6. The applicant's plea was taken by the chief magistrate on 4/10/2017 in file No. 929 of 2017 on bond terms of Kshs.400,000/= with one surety or cash bail of Kshs.100,000/= given. There are four charges facing the two accused persons jointly of stealing contrary to Section 268(1) as read with Section 275 of the Penal Code Cap. 63 Laws of Kenya.
7. The value of the alleged stolen property is approximately Kshs.80,000/=. The prime consideration in granting bail is whether the accused person will attend trial. The nature of the offence and the value of the property stolen are secondary but still are important considerations to be made by the court.
8. The accused person enjoys the benefit of the presumption of innocence until proven guilty.
9. I have considered all the above factors and wish to make a few observations. The orders made by the magistrate on 4/10/217 for bond of Kshs.400,000/= with one surety or cash bail of Kshs.100,000/= were a bit on the higher side considering the nature of the offence and the value of the property allegedly stolen. The said terms were reviewed downwards by the court on 31/10/2017 on application by the 1st accused to bond of Kshs.100,000/= with one surety. The terms which were set after this application was filed are reasonable considering all the foregoing factors.
10. However, the applicant seems to prefer a cash bail which he sets at Kshs.20,000/= in his application. I am of the considered opinion that the figure is on the lower side considering that the applicant is facing four (4) counts of stealing and that the value of the property in the charge sheet is around Kshs.80,000/=. However, the court must ensure that bail is as affordable as possible to an accused person.
11. For the foregoing reasons, I hereby allow the application for review in the following terms:-
That the applicant be and is hereby released on bond of Kshs.100,000/= with one surety of a similar amount and in the alternative on a cash bail of Kshs.50,000/=.
12. It is hereby so ordered.
DATED, DELIVERED AND SIGNED THIS 8TH DAY OF NOVEMBER, 2017.
F.MUCHEMI
JUDGE
In the presence of:-
Ms. Wambugu for Mugambi for Applicant