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MagistrateAllowed

Republic v Isaak & 5 others (Anti-Corruption Case 9 of 2015) (Anti-Corruption and Economic Crimes) [2016] KEMC 3 (KLR)

Chief Magistrate's Court (Criminal Trial)
9 December 2016
4,123 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Chief Magistrate L.N. Mugambi addresses the State's application to proceed with a criminal trial - alleging conspiracy to commit an economic crime under the Anti-Corruption & Economic Crime Act - against the 6th accused in his absence after he absconded on bail, reportedly having left for Nigeria on 8.7.2015. The defence, led by Senior Counsels Kamau Kuria and Nzamba Kitonga, argued that Article 50(2)(f) of the Constitution and section 194 of the Criminal Procedure Code make the accused's presence mandatory; that trials in absentia exist only in civil-law jurisdictions; and that proceeding would amount to a mistrial and detention without trial. The State, through M/s Kanyuira, contended the accused waived his right by his own conduct. The court analysed sections 99(1), 206(1) and (2) and 194 of the CPC and Article 50(2)(f), concluding that while express statutory provisions cover minor offences, section 194 read with Article 50(2)(f) permits dispensing with attendance in other circumstances, including deliberate absconding by a felony accused. Adopting Mbogholi-Msagha J's reasoning in Criminal Revision No. 299 of 2012 and the House of Lords' decision in R v Jones, the court held the right to be present is not absolute and is waived by conduct that impedes the trial. Given the conspiracy charge could not later be tried separately, and to avoid conferring an unjustified advantage on the absconded accused and delaying the co-accused's trial, the application succeeded and hearing was fixed for April 2017 with bond extended.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court may proceed with the trial against the 6th accused in his absence after he absconded while on bail
  2. 2.Whether the right of an accused to be present at trial under Article 50(2)(f) of the Constitution is absolute
  3. 3.What conduct under Article 50(2)(f) permits a trial in absentia

Key legal issues

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01

Whether trial in absentia is permissible for felony charges under Kenyan law

Holding

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.

Reasoning

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.

p. 5
02

Application to the facts

Holding

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.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The State's application to proceed with the case notwithstanding the absence of the 6th accused is allowed
  2. 2.Hearing fixed for 6th, 10th and 11th April 2017
  3. 3.Bond extended

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 5Right to be present at trial not absolute
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
p. 7R v Jones - effect of voluntary absence
The application by the state to proceed with the case notwithstanding the absence of 6th accused therefore succeeds.
p. 9Final orders - application allowed
Court – Hearing now 6th, 10th and 11th April, 2017. Bond extended.
p. 9Final orders - hearing dates and bond

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 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.