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
#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
- Jurisdiction invoked
- Article 50(2)(f) of the Constitution and sections 99(1), 194 and 206(1) & (2) of the Criminal Procedure Code
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.