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Onyango v Republic (Criminal Petition E057 of 2022) [2022] KEHC 16253 (KLR) (13 December 2022) (Ruling)
Neutral citation:
[2022] KEHC 16253 (KLR)
Republic of Kenya
Criminal Petition E057 of 2022
F Gikonyo, J
December 13, 2022
Between
Isaac Opiyo Onyango
Applicant
and
Republic
Respondent
(Revision from ruling in Narok CM SOA No. E099 of 2021 delivered on 26/01/2022)
Ruling
Bond: Meaning of ‘reasonable conditions’
1.The applicant who was charged with six counts of Defilement for alleged penetration of the anus of 6 male children aged 11, 6, 13, 7, 8, and 8 years was granted a bond of Kshs. 300,000/= with three sureties of a similar amount.
2.The applicant considers the bond as well as the terms to be unreasonable.
3.He has now applied through an application dated 1st July 2022 for review of the bond and the terms thereto.
4.The application is expressed to be brought under Article 49, 50(1), 165(6), and (7) of the Constitution of Kenya 2010, Section 362 of the Criminal Procedure Code, and all other enabling provisions of law.
5.The application is supported by an affidavit sworn by the applicant, Isaac Opiyo Onyango on 1st July 2022 and other grounds set out below.
6.The Applicant seeks orders that the proceedings before Court in Narok Chief Magistrate’s Court Sexual Offences Case No. E099 of 2021 be removed and brought to the High Court for purposes of ascertaining the legality, correctness, and or propriety of the proceedings and ruling of the lower court. His major complaint is that the magistrate granted unreasonable bail and bond terms. He beseeches the Court to set aside the bail and bond orders made and admit the Applicant to bail or bond on reasonable terms. He also seeks for costs of the application to be provided for.
7.He gave his reasons that; in setting the bond terms, the trial court failed to take into cognizance the presumption of innocence and that admission to reasonable bond terms is a constitutional right. In addition, bail or bond ought not to be used as a punishment against the accused despite the gravity of the offences alleged to be committed. The applicant claims to be a man of modest means and is now languishing in custody for over six months having been condemned to unreasonable bond terms that he is unable to satisfy. According to the applicant, his constitutional rights continue to be curtailed unnecessarily causing him a grave injustice. He sees no prejudice being suffered by the Respondent if the orders prayed for herein are granted.
Respondent prays for cancellation of bond
8.The respondent in opposition to the application filed an affidavit in reply sworn by PC (W) Lucy Rianto on 29th August 2022.
9.They also filed grounds of opposition dated 29th August 2022.
10.They argued that the applicant is facing extremely serious charges and is liable upon conviction to imprisonment for life. That the evidence gathered so far places the accused person as having committed the crime for which he is facing charges and the evidence so far on record is cogent and sufficient to secure a conviction and hence the temptation of the applicant to abscond if released on bail. They argued that there existed and still exists compelling reasons that warrant the detention of the applicant pending hearing and determination of the trial as stated in the affidavit sworn by the investigations officer on the 15th December 2021. They stated that they shall seek the applicant’s application to be dismissed as it does not meet the required threshold and that bail granted be canceled till the hearing and determination of the case.
Directions of the court on further arguments
11.The application was canvassed by way of written submissions. Both parties complied.
12.On 5/10/2022, this court directed that the grounds of opposition were filed contrary to this court’s directions. Nevertheless, the accused was given an opportunity to respond to the grounds of opposition so filed. Pursuant to the order, the accused made oral representation on the grounds of 17/10/2022 as below.
Applicant’s further submissions.
13.Mr. Lubeto submitted that DPP was asking for the cancellation of bail. The grounds of opposition are an appeal through the back door. According to the defence counsel, the accused came to this court under the revisionary powers and it is not possible to vary the terms in a manner prejudicial to the accused. He argued that the prosecution should have filed an appeal or review by the lower court.
14.The defense submitted that the two-tier test on bail terms is i) whether admissible to bail or not and ii) terms of the bond. The lower court admitted him to bail. It is considered a bail report. The terms are to ensure that he attends court.
15.Mr. Lubeto emphasized that the grounds of opposition are an appeal in substance.
16.The applicant submitted that granting bail/bond should entail striking a balance of proportionality in considering the rights of the applicant and the public interest. Where an accused person and his sureties are unable to meet high financial obligations placed on them, a court should reconsider revising the set amounts lower to affordable rates in attempts to actualize the letter and spirit of article 49(h), especially where the said court is satisfied that there are no compelling reasons not to admit the accused to bail/bond.
17.The applicant submitted that before seeking revision of the bond terms, counsel for the applicant requested a review of the bond terms to the trial court. counsel stated that he painted a vivid picture to the court of the poverty levels of the applicant and immediate relatives but the request for review was declined.
18.The applicant submitted that the continued confinement of the applicant in custody should be construed to mean that the terms of the bond are unaffordable to the accused person, and the conditions envisaged by the constitution are not reasonable. It is therefore incumbent upon this court to revise these conditions to an affordable level thus making it reasonable to the accused person.
19.The applicant submitted that the requirement of three sureties is redundant, excessive and a denial of bail/bond by the back door. The need to compel attendance need not be discharged by three persons.
20.The applicant submitted that the conditions set for the accused enjoyment of bail/bond are unreasonable, and excessive and amount to a denial of bail by the back door.
21.The applicant urged this court to consider the terms and vary the terms using a reasonableness test dictated by the constitution under Article 49(h).
22.The applicant has relied on the following authorities; Article 49(1)(h) of the Constitutioni.Harish Mawjee & Another V Republic [2020 eKLRThe bail and bond policy guidelines at page 9 paragraph 3.1(d)i.Andrew Young Otieno Vs Republic [2017] eKLR.ii.Joseph Mutakimeu Versu Republic [2017 eKLR
Prosecution’s submission
23.The prosecution submitted that there has been no change in the material circumstances of the case to warrant the court to review the bond terms that were granted. that the matters raised by the applicant in the supporting affidavit for revision are matters of judicial discretion where the law is very well settled that the courts judiciously exercise its discretion and the applicant has not adduced any evidence of illegality, irrationality, impropriety, misdirection on the part of the trial magistrate in exercising judicial discretion.
24.The prosecution submitted that this court should take judicial notice of increased sexual and gender-based attacks that have continued to plague Narok county and the need to ensure that justice is done and seen to be done.
25.The prosecution prayed that the bail granted to the applicant be canceled till the hearing and determination of his case.
26.The respondent has relied on the following authorities;i.Omba Gandu Magloire Alias Bongo Vs Republic Misc. Crim. App. No. 679 of 2004.ii.Article 49(1) (h) of the Constitutioniii.Republic Vs Ahmed Mohammed Omar & 6 Ors High Court Nairobi Criminal Case No. 14 Of 2010.iv.The Bail and Bond Policy Guidelines at Para 4.26(A)v.Republic Vs Ahmad Abolafathi Mohammad & Anor High Court Nairobi Criminal Revision No. 373 of 2012.vi.Republic Vs Taiko Kitende Muinya Criminal Case No. 65 of 2010[2010] eKLR.vii.Dr. Ismail Kalule & 2 Ors Vs Uganda Crim. Misc. App. No. 57, 58, 59, 60 of 2010.viii.Republic Vs Milton Kabulit & 6 Others Crim. Case No. 115 of 2008[2011] eKLR.ix.Republic Vs Paul Odero Nguka High Court Nairobi Criminal Case No. 58 of 2013
27.In a rejoinder to the oral submissions by Mr. Lubeto, Ms. Torosi submitted that the grounds of opposition are properly before the court. No law bars grounds of opposition.
Analysis And Determination
28.I have considered the application, the supporting affidavit, grounds of opposition, the respondent’s affidavit in reply, and the respondent’s written submissions in opposition thereof. The issues for determination are;i.Whether the prosecution’s request for cancellation of bond may competently be tried within this revision filed by the accused for review of bond terms.ii.Whether this court should review the bond and terms thereof granted by the trial magistrate.
Revisionary Jurisdiction of the High Court
29.The High Court is vested with Revisionary powers under Article 165(6) & (7) of the Constitution, Sections 362 and 364 of the Criminal Procedure Code Cap 75.
30.Article 165 of the Constitution provides that: -i.(6) The High Court has supervisory jurisdiction over the subordinate courts and any person, body, or authority exercising a judicial or quasi-judicial function, but not over a superior court.ii.(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.
31.Section 362 of the Criminal Procedure Code Cap 75 provides as follows: -i.“Power of the High Court to Call for Records:ii.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.”
32.Section 364 further outlines how the revision jurisdiction should be exercised. It states as follows: -i.“Powers of the High Court on Revision
33.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 –i.(b) In the case of any other order other than an order of acquittal, alter or reverse the order.
34.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 defense:i.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.
Jurisprudence: Interface between Constitution and s. 362 of CPC
35.I will, nonetheless engage, for purposes of jurisprudence, a debate that is raging on the interface between the article 165(6) & (7) of the Constitution and section 362 of the CPC. Others prefer to call it; the scope of revisionary powers delineated in section 362 of the CPC in light of article 165(7) of the Constitution. There are those who posit that section 362 is exhaustive. Yet, there are those who argue that article 165(7) of the Constitution has widened the scope of jurisdiction on revision and the court ‘’may make any order or give any direction it considers appropriate to ensure the fair administration of justice’’
36.The prudent way is to establish the yardstick, and then gauge against such yardstick. My view is that section 362 of the CPC being an existing law is bound to be construed in accordance with the tool or technique provided in clause 7 of the Sixth Schedule of the Constitution, that is; ‘’…with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution’’. The yardstick therefore is the Constitution.
37.Review of bond terms said to be unreasonable
38.Be that as it may, the application before me is for review of bond terms which the applicant says are unreasonable. I do note also that the respondent is seeking cancellation of the bond issued to the applicant. This dichotomy of approach constitutes two issues, namely: -i.Whether the bond and the terms granted by the trial court are unreasonable, and therefore, amenable to review; andii.Whether the bond should be cancelled altogether.
39. Prosecution’s request for cancellation of bondwill invert the order the issues appear and deal with the second issue, for it is of preliminary importance.
Appeal in form of grounds of opposition
40.The applicant has argued that the grounds of opposition filed by the respondent is a form of appeal through the back door against the order of the trial court granting the applicant bond. It was the view of the defense that since they came to this court under the revisionary powers, it is not possible for the prosecution to ask for variation of bond in a manner prejudicial to the accused. The defense counsel argued that the prosecution should have filed an appeal or review of the decision by the lower court.
41.The respondent has submitted that there is no law which prohibits filing of grounds of opposition to an application such as this one.
These submissions attract the following.
42.The normative and procedural terrain of an application by the accused for revision of bail terms, does not support impleading by the prosecution in a reply, much less in the grounds of opposition, of such substantive request or action as cancellation of bond, which ordinarily, should be made separately in an appeal or revision by the prosecution, for it is intended to take away his liberty. Entertaining the request in the manner pleaded and proposed by the prosecution, would be prejudicial to the substantive as well as procedural protections offered to the accused by the law. See section 364 of the CPC. I do not even think the proposed model of procedure adopted by the prosecution is founded on the practice and procedure in civil or sui generis actions where cross-action, or counter-claim is permitted. I, therefore, find the path adopted by the prosecution to be problematic; and the less I say about the request the better. Let it rest.
Reasonable conditions in bail or bond
43.An accused person has a right ‘’to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released’’ (Article 49(1)(h) of the Constitution).
44.The applicant was granted bond but he now claims that the bond of Kshs. 300,000 with three sureties, amounts to unreasonable terms. According to the applicant these conditions are tantamount to denying him bail.
45.The prosecution is of a different opinion; that the applicant should have been denied bond in the first place given the circumstances of the case.
46.‘Reasonable conditions’ in relation to bail or bond in article 49(1)(h) of the Constitution, should be demarcated by the circumstances of each case. This entails discretion by the court but which must be exercised judicially.
What are the circumstances of this case?
47.I have perused the trial court record and noted that the bail assessment report dated 19th January 2022 that was made available to the trial court for consideration, recommended that the applicant may be released with suitable bond terms with several sureties. Partly, on the basis of this recommendation, the trial court ordered his release on bond of Kshs. 300,000 with three sureties.
48.I do note also that the victims who are also witnesses in this case are minors. In law, the views of the victims are considered by the court in determining bail or bond application. This calls for novel balancing of right of accused against those of victims who are minor as well as public interest. is necessary.
49.I do note however, that the victims’ parents’ expressed fear of the accused interfering with witnesses.
50.The prosecution vehemently opposed bond before the trial court on account of likelihood of interference with witnesses and absconding.
51.The trial court considered all relevant factors in determining the bond and the terms herein. And I do not find anything particularly offensive of exercise of judicial discretion by the lower to justify interference by this court with exercise of discretion herein. See Mbogo v. Shah (1968) EA 93 thus: -
52.There was nothing unreasonable, illegal or improper or incorrect or irregular with the bond and terms thereto herein. No injustice was committed against the applicant or denial of right to bail by the terms set for the bond which was necessary to secure the attendance and preserve the integrity of the trial. I dismiss the application.
DATED, SIGNED, AND DELIVERED AT NAROK THROUGH THE MICROSOFT TEAMS ONLINE APPLICATION, THIS 13TH DAY OF DECEMBER, 2022.F. GIKONYO M.JUDGEIn the Presence of:1. Lubeto for Applicant2. Ms. Torosi for Respondent3. Accused person4. Mr. Kasaso - CA
