The Director of Public Prosecutions has faulted bail terms issued by a magistrate’s court in freeing Embakasi East MP Babu Owino.
DPP Noordin Haji said he was taken aback by the court’s decision to release the legislator on what he termed as “free bond” and now wants the High Court to call the file from the trial magistrate, with a view of examining the circumstances, legality, and propriety of the orders issued on January 27.
The MP who is charged with attempting to murder Felix Odhiambo Orinda (DJ Evolve) was released on a Sh10 million cash bail to be paid in installments and channeled towards the victim’s hospital bill.
Trial magistrate Francis Andai ruled that the MP shall meet the initial medical expenses of the victim and to this end up to the value of Sh10 million, an amount he said was equivalent to the value of cash bail the court had set for him.
Yesterday, the DPP said courts have the discretion to give bail conditions as per the Constitution but questioned the ruling delivered on this matter.
“There is more than meets the eye. Babu Owino is on a free bond and let someone come and correct me if I am wrong,” said the DPP in an interview with The Standard.
Haji said bail is to provide a guarantee that the accused person will attend trial, adding that it is only after conviction that the court can make a pronouncement on money deposited as cash bail.
Section 175(1) of the Criminal procedure Code provides that a court on convicting a person of an offence imposes a fine or sentence and may, when passing judgment, order the whole or any part of the fine recovered to be applied in defraying expenses properly incurred in the prosecution of the offence.
As at now, the DPP’s office said Babu has no cash bail deposited in court that can be forfeited if he absconds the hearing of his case and wondered how some of the bail conditions such as being barred from taking any form of alcoholic drink or narcotic drug in a public establishment during the pendency of the case.
The Law Society of Kenya President Allen Gichuhi said the society has “never seen anything like that” and was monitoring the matter with a view of being enjoined.
“This is a very unique situation and we are perturbed over this innovation by the magistrate,” he said.
The issue rekindled instances when the DPP’s office raised concern over the manner in which some of its cases were being handled by the Judiciary last year.
Last year, the DPP raised an alarm over the loss of heroin exhibit worth Sh30 million suspected to have disappeared from the court stores between December 4, 2018, and July 2019.
Hajji told Chief Justice David Maraga that when his office raises issues in the manner in which some cases are handled, he should not feel that they are targeting him but work with all court user institutions to safeguard the criminal justice system.
“The ruling on Babu’s bail has a ripple effect on society. Kenyans are bound to see more because this is just the beginning,” he added.
Addressing students at a university, Former CJ Willy Mutunga said there was no law that called for a suspect to post cash bail, which would be used to offset a victim’s medical bill.
He said the ruling put the Judiciary on the spot and could erode confidence in the eyes of the public.
The DPP’s office has since moved to the High Court to have the January 27 ruling reviewed on the grounds that the magistrate failed to apply the Bail and Bond Policy guidelines of the Judiciary 2015 in the case.
The application filed on January 29 states that the magistrate released the accused person on “ambiguous, imprecise and unenforceable terms”, adding that he gave final orders for compensation before the full trial of the case.
The DPP says the court failed to consider DJ Evolve’s rights and more especially on his security fears under the Victims Act 2014.
“The conditions upon which the accused is released purportedly on Sh10 million bond/bails nothing more than security for victim’s medical expenses and as such, there is no tangible security or recognizance to be deposited in court,” reads part of the court papers.
On the other hand, Babu has filed an application seeking a review of his bail terms on the grounds that he would struggle to pay the remaining installments despite having complied with the court order.
There are plans by the DPP’s office to write a protest letter to JSC over the manner in which the bail issue was handled.
“We are tired! We are writing to JSC because whenever we prepare to investigate a judge or magistrate, there are blockages. This is why we have issues of integrity,” the DPP added.
Deputy DPP Dorcas Oduor said bail is to basically secure the accused person’s attendance to court and that is why it is a contract between the court and that person.
There are instances where accused persons cater for the treatment of their accusers or complainants and in the end, use the hospital receipts as a mitigating factor in their case.
She added that there are hundreds of accused persons languishing in remand due to the fact that their families cannot raise the whole bail amount ordered by the court until and when their families or friends are able to do so to secure their temporary release.
In a report by the DPP on remand case review prepared in 2018, there were a total of 30,570 remandees in the 65 remand stations in the country with Nairobi’s Industrial Area holding a population of 2,400, a figure that is double its normal capacity.
According to the report, remand prisoners consume taxpayers’ money at the rate of Sh240 per day, per person.
