Republic v Isaak & 5 others (Anti-Corruption Case 9 of 2015) (Anti-Corruption and Economic Crimes) [2016] KEMC 1 (KLR)
The bottom line
#A Kenyan court confirmed that an accused person who deliberately absconds on bail can be tried in their absence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court may lawfully proceed with the trial in the absence of the 6th accused who has absconded after taking plea
- 2.Whether the right of an accused to be present at trial under Article 50(2)(f) is absolute
- 3.Whether the conduct contemplated by Article 50(2)(f) extends beyond disruptive behaviour inside the courtroom to absconding
- 4.Whether sections 99(1), 194 and 206 of the Criminal Procedure Code permit trials in absentia for felonies
Key legal issues
#Scope of Article 50(2)(f) right to be present at trial
The right is not absolute; conduct that impedes the trial, including deliberate absconding, waives it
The court read section 194 of the Criminal Procedure Code in light of Article 50(2)(f). While sections 99(1) and 206 allow trials in absentia only for minor offences, section 194's phrase 'or when his personal attendance has been dispensed with' permits dispensing with attendance in other situations regardless of whether the offence is a felony or misdemeanour. The court adopted Mbogholi-Msagha J's broader view that disruptive conduct and absconding both fall within the constitutional proviso.
Authority of R v Jones (House of Lords)
The House of Lords in Regina v Jones confirms a discretion to try an absconding defendant, exercisable with caution
The court found Lord Bingham's reasoning directly applicable: a defendant who voluntarily absents himself with full knowledge of the trial cannot complain of lost benefits; and refusing to exercise the discretion would delay joint trials, prejudice witnesses, and confer unjustified advantage on the absconding accused. This amplified Mbogholi-Msagha J's reasoning and answered counsel's objection that in absentia trials are unknown to common law systems.
Application to the facts
The 6th accused's conduct justified proceeding in his absence
The 6th accused took plea on 24.6.2015, was granted bail, and knew the hearing date of 21.9.2015. He failed to appear, his advocate withdrew, and a warrant of arrest issued. He had not communicated with the court. Proceeding jointly was necessary because conspiracy charges require joint trial; trying him separately later would be impermissible and refusing to proceed would indefinitely delay the co-accused's trial.
Legal principles established
#- The right of an accused to be present at trial is not absolute; it may be waived by voluntary conduct such as absconding
- The court has a discretion, to be exercised with great caution, to commence or continue a trial in the absence of an accused who has voluntarily absconded
Court orders
#- 1.The application by the state to proceed with the case notwithstanding the absence of the 6th accused succeeds
- 2.Trial to proceed against all accused including the 6th accused in his absence
- 3.Hearing fixed for 6th, 10th and 11th April 2017
- 4.Bond extended
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 50(2)(f) of the Constitution and sections 99(1), 194 and 206(1) & (2) of the Criminal Procedure Code
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application by the state to proceed with the case notwithstanding the absence of 6th accused therefore succeeds.
this court finds that the conduct contemplated by Article 50 [2] [f] is wider than merely disruptive behaviour inside the court
Sec. 194 of Criminal Procedure Code should thus be read in context of Article 50[2] [f] of the Constitution.
Taking into account the provisions of sections 99[1], 206 (1) and (2), 194 of the Criminal Procedure Code and Article 50 [2] [f] of the Constitution, this court finds the jurisprudential approach adopted by Mbogholi-Msagha Judge more tenable and will thus be guided.
one who voluntarily chooses not to exercise a right cannot be heard to complain that he has lost the benefits which he might have expected to enjoy had he exercised it
Hearing now 6th, 10th and 11th April, 2017. Bond extended.
Issues in the judgment
#Judgment refers to the Yagnesh Devani decision both as 'Criminal Appeal No. 299 of 2012' and as 'Criminal Revision No.299/2012' decided by Mbogholi-Msagha J, creating ambiguity as to the correct case number and nature
The citation of Salim Said is rendered incompletely as 'Salim Said & 2 Others Vs. Republic -2012] eKLR'
Defence submissions attribute Article 50(2)(f) to counsel citing 'article 50[2] [f]' while the state cited 'Article 50[1] [f]', an apparent typographical inconsistency in the constitutional article referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Isaak & 5 others (Anti-Corruption Case 9 of 2015) (Anti-Corruption and Economic Crimes) [2016] KEMC 1 (KLR)", Case Analysis (2016). Criminal Case (6th accused's trial-in-absentia application); see also Criminal Revision No. 299 of 2012 referenced. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/1/eng@2016-12-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.