Republic V Shah  EKLR
|Criminal Application 295 of 1986||31 Jul 1986|
Chunilal Bhagwandas Madan
High Court at Nairobi (Milimani Law Courts)
Republic v Shah
Republic v Shah  eKLR
Republic v Shah
High Court at Nairobi
July 31, 1986
Madan Ag CJ
Criminal Application No 295 of 1986
(In an intended appeal from Conviction(s) and Sentence of the Chief Magistrate’s Court at Nairobi)
Bail – bail pending appeal – cancellation of such bail – accused granted bail pending appeal – Republic asking court to cancel bail because the respondent had attempted to influence a judge hearing his appeal – whether High Court having jurisdiction to order cancellation of bail.
Jurisdiction – High Court – jurisdiction to hear and determine an application for cancellation of bail pending appeal – whether Court possessed of such jurisdiction.
The respondent was convicted of theft and sentenced to two years’ imprisonment. He appealed against his conviction and sentence and was released on bail pending his appeal.
The republic applied for an order that the respondent’s bail should be cancelled and that he should be committed to prison to serve his sentence.
The application was supported by an affidavit sworn by an Assistant Commissioner of Police stating that he verily believed that the respondent had tried to influence one of the judges hearing his appeal. A letter was produced which it was said the respondent had written to the spouse of one of the judges with the intention of influencing the outcome of the appeal in his favour.
The respondent did not file a replying affidavit but he objected to the applicant’s affidavit as being mere hearsay and argued further that the Criminal Procedure Code (cap 75) made no provision for the cancellation of bail pending appeal.
1. The affidavit of the Assistant Commissioner of Police was not hearsay. If the contents of an affidavit solemnly deponed give the impression of being correct, the affidavit ought to be accepted. Moreover, the respondent had not controverted the letter by a replying affidavit of his own.
2. It had been established that the respondent had made an attempt to pervert the course of justice.
3. There was no section of the Penal Code (cap 63) or of the Criminal Procedure Code (cap 75) which seemed to deal with a situation such as the one in this case but the absence of a specific provision of the law did not mean that the court did not have jurisdiction to entertain the application.
4. The court had inherent power to put an end to misbehaviour or misconduct by a person who is involved in or is the subject of criminal proceedings by cancelling his bail or by any other order to prevent both the perversion and miscarriage of justice.
5. (Obiter) The delay in delivering the judgment in the respondent’s appeal was unfair and it might be a factor for taking into account if an application for bail is renewed.
Application allowed, bail cancelled.
No cases referred to.
1. Penal Code (cap 63) generally, section 75
2. Criminal Procedure Code (cap 75) generally, section 357
B Chunga, Assistant Deputy Public Prosecutor for the Applicant