Hezekiah Kimemia v Republic

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MURANG’A MISCELLANEOUS CRIMINAL APPLICATION NO. 36 OF 2019 HEZEKIAH KIMEMIA……………..……………………………..……….APPLICANT VERSUS REPUBLIC……………………………………………………..….……..RESPONDENT [Revision from orders in S.O. 38 of 2019 at Kigumo by A. Ogonda,Senior Resident Magistrate dated 18 th June 2019 and 17th July 2019] RULING 1. The applicant has moved the court for revision of two rulings and orders dated 18th June 2019 and 17th July 2019 denying him bail. 2. The grounds are detailed in a Notice of Motion dated 29 th August 2019 and two depositions of even date by his counsel of record; and, by the applicant’s wife. 3. Section 362 as read with section 364 of the Criminal Procedure Code vests the High Court with wide power to call for the record of the lower court to examine the decision on correctness, legality or propriety. 4. In a nutshell the applicant avers that his original application for bail; and, the subsequent application for review were unfairly or unreasonably dismissed by the lower court. The effect is that the applicant has languished in custody since 22 nd May 2019 when he was first arraigned in court. Paraphrased, the applicant contends that the learned trial magistrate improperly exercised her discretion thereby denying the applicant his constitutional rights guaranteed by Articles 29, 49 and 50 of the Constitiution. 5. I have carefully studied the original record. The applicant is charged with defilement of a child aged 11 years. The learned trial magistrate went into great length and cited the law and some precedents to back up the impugned decisions. The overarching objective of bail is to ensure the accused attends his trial. Muraguri v Republic [1989] KLR 181. However, the trial court, retains discretion whether to grant bail. The decision has of course to be made in a judicious manner. 6. The applicant has applied for revision. It is inappropriate in the circumstances. In my view, the applicant should have lodged an appeal against the two decisions denying him bail. In that way, the High Court would properly deal with the merits of the decisions by the lower court. The less I say about it the better. 7. The revision is accordingly refused. The original record shall be transmitted back to the trial court forthwith. It is so ordered. DATED, SIGNED and DELIVERED at MURANG’A this 3rd day of October 2019. KANYI KIMONDO JUDGE Ruling read in open court in the presence ofThe applicant (absent) Mr. C. Mbugua for the applicant.

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