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High CourtAllowedCriminal Appeal from Criminal Case No. 87 of 2013 (Principal Magistrate's Court, Kabarnet)

Republic v. Nyakori Achale - Appeal by Surety (Benson Mirkissi Komolkol)

High Court of Kenya
29 May 2020
2,871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Failing to produce an accused person is a breach of bond, not a crime, and you cannot be criminally convicted or fined for it.

What this practically means

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Executive summary

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This was an appeal against a ruling of the Principal Magistrate's Court at Kabarnet in Criminal Case No. 87 of 2013 (R v. Nyakori Achale). The accused, charged with robbery with violence, was released on a bond of Kshs.200,000 with two sureties - both chiefs and relatives of the accused. When the accused absconded, the sureties claimed he had been killed in a raid and produced a death certificate obtained only after the court demanded one. The trial court, doubting its authenticity after hearing the deputy registrar of births and deaths and the administration police, found the certificate was fraudulently created in collusion with the accused, and ordered each surety to deposit Kshs.200,000 within 30 days for failure to produce the accused. The appellant, the 2nd surety, appealed; the DPP did not oppose the appeal. The High Court (Muriithi, J) held that failure by a surety to produce an accused is not an offence but merely a breach of bond conditions whose remedy is forfeiture of the security; convicting and fining the surety without a charge violated the principle of legality under Article 50(2)(n) and the unlimitable right to a fair trial under Article 25. The trial court's proceedings and conviction were declared a nullity, the conviction was quashed, the deposit order set aside, and any bail security discharged. The court also deprecated the practice of public officers standing surety and noted potential conflict of interest, and recommended use of section 352A of the Criminal Procedure Code for summary allowance of unopposed appeals.

Key legal issues

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01

Whether a surety can be convicted and fined for failure to produce the accused

Holding

No - such failure is only a breach of bond conditions whose remedy is forfeiture of the security; conviction without a charge is a nullity.

Reasoning

The court held that failure to comply with bond terms attracts forfeiture of the bond security or cash deposit, not conviction. There is no known offence of failing to produce an accused. Imposing a fine of Kshs.200,000 was in substance a punishment without a charge, offending the principle of legality entrenched in Article 50(2)(n) of the Constitution.

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02

Whether the trial court's finding of collusion and fraudulent death certificate could ground conviction

Holding

No - findings of making a false document and uttering, or offences under death registration law or the Penal Code, required a formal charge and fair trial under Article 25.

Reasoning

The trial court's finding that the sureties colluded with the accused to fabricate a death certificate amounted in substance to a conviction for making and uttering a false document without any charge. If offences were disclosed under death registration law or the Penal Code, the sureties should have been charged and tried with the constitutional right to defend themselves.

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03

Whether public officers should stand surety for accused persons

Holding

Objectionable - it creates conflict of interest and embarrassment when the officer-surety must prove the accused's death or forfeit property.

Reasoning

The court reiterated that government officers standing surety is objectionable because of the embarrassment and coercive measures that follow if the accused absconds. Here the sureties were chiefs and relatives of the accused, creating a conflict of interest; public officers must avoid situations of actual or potential conflict of interest in their official duties.

p. 4

Legal principles established

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  • Failure by a surety to produce an accused is not an offence; the only sanction is forfeiture of the bond security, and conviction of a surety without a charge is a nullity.
  • A person cannot be convicted for an act that was not an offence under law (nullum crimen sine lege, nulla poena sine lege) under Article 50(2)(n) of the Constitution.

Court orders

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  1. 1.Declared that the trial court proceedings investigating the death of the accused and the consequent conviction and punishment of the sureties are a nullity
  2. 2.Quashed the conviction of the appellants/sureties for failure to produce the accused in Criminal Case No. 87 of 2013 and set aside the order for deposit of Kshs.200,000/-
  3. 3.Any security deposit for bail pending the appeal to be discharged and returned to the depositor
On appeal from
Principal Magistrate's Court at Kabarnet
Criminal Case No. 87 of 2013, R v. Nyakori Achale
Jurisdiction invoked
First appellate jurisdiction over subordinate court criminal proceedings (Criminal Procedure Code, including section 352A)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v. Nyakori Achale - Appeal by Surety (Benson Mirkissi Komolkol)", Case Analysis (2020). Criminal Appeal from Criminal Case No. 87 of 2013 (Principal Magistrate's Court, Kabarnet). Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.