Republic v Isaak & 5 others (Anti-Corruption Case 9 of 2015) (Anti-Corruption and Economic Crimes) [2016] KEMC 3 (KLR)
The bottom line
#A Kenyan court ruled that an accused person who jumps bail can still be tried in absentia, because the right to attend trial is not absolute.
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 proceed with the trial against the 6th accused in his absence after he absconded while on bail
- 2.Whether the right of an accused to be present at trial under Article 50(2)(f) of the Constitution is absolute
- 3.What conduct under Article 50(2)(f) permits a trial in absentia
Key legal issues
#Whether trial in absentia is permissible for felony charges under Kenyan law
Yes. Sections 99(1) and 206 of the CPC allow trials in absentia only for minor offences, but section 194 read with Article 50(2)(f) permits dispensing with attendance in other circumstances, including where a felony accused absconds deliberately.
The court read sections 99(1), 206(1) and (2) and 194 of the CPC together with Article 50(2)(f). While the express statutory provisions cover misdemeanours and minor sanctions, section 194's phrase 'when his personal attendance has been dispensed with' leaves room for other situations. The court adopted Mbogholi-Msagha J's reasoning that attendance is not an absolute right, aligned with the House of Lords in R v Jones, holding that deliberate absconding waives the right to be present.
Application to the facts
The 6th accused took plea, was granted bail, was informed of the hearing date, and absconded; trying him separately later would be impossible on a conspiracy charge with co-accused present, so the trial must proceed in his absence.
The court found the 6th accused's conduct inexcusable: he breached bail and never communicated his whereabouts. Refusing the discretion would indefinitely delay the co-accused's trial and risk loss of evidence; trying the others alone would confer an unjustified advantage. On a conspiracy charge he could not be tried separately later, so the case should proceed in his absence together with the rest.
Legal principles established
#- The right of an accused to be present at trial is not absolute; where the accused's own conduct, such as absconding, makes it impossible for the trial to proceed, the court may dispense with his presence and try him in absentia.
Court orders
#- 1.The State's application to proceed with the case notwithstanding the absence of the 6th accused is allowed
- 2.Hearing fixed for 6th, 10th and 11th April 2017
- 3.Bond extended
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 99(1), 194 and 206(1) & (2) of the Criminal Procedure Code read with Article 50(2)(f) of the Constitution
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 attendance of the accused persons is not an absolute right. The condition laid down by the Constitution to warrant violation of right to be present during trial, is when the conduct of an accused person impedes on progress of the trial.
If a Criminal Defendant with full knowledge of forthcoming trial, voluntarily absents himself, there is no reason in principle why his decision to violate his obligation to appear and not to exercise his right to appear should have automatic efiect of suspending criminal proceedings against him
The application by the state to proceed with the case notwithstanding the absence of 6th accused therefore succeeds.
Court – Hearing now 6th, 10th and 11th April, 2017. Bond extended.
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 3 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/3/eng@2016-09-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.