Ucelli v Office of the Director of Public Prosecution [2022] KEHC 3148 (KLR)

Ucelli v Office of the Director of Public Prosecution (Miscellaneous Criminal Application E041 of 2022) [2022] KEHC 3148 (KLR) (19 May 2022) (Ruling)

Neutral citation: [2022] KEHC 3148 (KLR)

Republic of Kenya

In the High Court at Mombasa

Miscellaneous Criminal Application E041 of 2022

ACA Onginjo, J

May 19, 2022

Between

Steffano Ucelli

Applicant

and

Office of the Director of Public Prosecution

Respondent

Ruling

1. By an application dated 17th March 2022 the Applicant sought that his passport no. YA3774701 deposited in court as security for bond in Mombasa CMC. CR. Case No. 854 OF 2020 should be released to enable him travel urgently and attend to his ailing father in Italy.The Applicant also sought for costs of the Application.

2. The Application is premised on the grounds on the face of the application and supporting affidavit of the Applicant sworn on 7th March 2022. By a Replying Affidavit sworn by Vivian Kambaga on 3rd April 2022 the Application was opposed.

3. The Application was canvassed by way of submissions.The Applicant filed supplementary affidavit concurrently with written submissions.

4. In the supporting affidavit, the supplementary affidavit and the Applicants submissions the applicant has basically said that he has been in Kenya for 2 years without any gainful employment because of the pending constitutional petitions on 19/10/1935 and that his elderly father born father who depends on him was sickly and as per annexture ‘SU 2(a) required him for psychological support.

5. The Applicant contended and relied on annexture ‘SU 3’ to support his position that he is not a flight risk as he has investments in Kenya and that he has the right to be presumed innocent until proven guilty.

6. This court has considered the application together with submissions, the supplementary affidavit as well as the Replying Affidavit opposing the application and find that the Applicant has demonstrated to this court that his father is unwell and is undergoing treatment abroad.

7. The Applicant is however an accused person in CR. Case No. 854 of 2020 for which petitions No. 11 and 12 are pending for hearing and determination as to constitutionality of the charge against the Applicant. The said petitions have now been set down, down for mentions on 26th May 2022 and will soon be concluded/determined.

8. On the issue of release of Applicants passport and authority to travel out of court’s jurisdiction to seek medical attention and visit his sickly father, this court hereby grants the application on condition that the Italian Embassy in Kenya undertakes through the Kenyan foreign office that it will guarantee the return of the Applicant to the country for hearing and determination of his petition and the criminal charge(s) against him.

9. Upon the said undertaking confirmed by the Ministry of foreign affairs and Department of Immigration the Applicant will be allowed to go out of the court’s jurisdiction and return within 30 days thereof.

10. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 19TH DAY OF MAY, 2022HON. LADY JUSTICE A. ONG’INJOJUDGEIn the presence of:Mr. Anangwe Advocate for ApplicantMr. Ngiri for StateApplicant – No appearanceHon. Lady Justice A. Ong’injoJudge