The applicant was initially denied bail by the magistrate court on 27 November 2017. On appeal, this court (High Court) granted him bail on 11 April 2018 (HH 196/18). On 16 September 2018, he applied to the magistrate court for variation of bail conditions to obtain temporary release of his passport for medical treatment in South Africa. This was dismissed, but on appeal to the High Court, Chitapi J upheld the appeal in HH 753-2019, granting temporary release of the passport on condition that title deeds be surrendered. On 11 February 2020, the applicant again applied to the High Court for "revival of temporary variation" which was granted by Foroma J on 26 February 2020. The applicant now sought a third variation from the High Court, applying for release of his passport again for medical treatment in South Africa, offering different title deeds as security.
The application was struck off the roll for lack of jurisdiction.
When a High Court judge hears an appeal under section 121 of the Criminal Procedure and Evidence Act and makes an order relating to bail or bail conditions under section 121(5), that order is deemed by operation of section 121(7) to be the order of the magistrate whose decision was the subject of the appeal. Such an order remains an order of the magistrate court and can only be varied by the magistrate court in the first instance, or by the High Court on appeal from the magistrate court. The High Court does not have jurisdiction to vary bail orders of the magistrate court except on appeal. There is no legal basis under the Act for 'revival' applications or for ranking bail variation applications as first, second, or subsequent applications.
The court made strong observations discouraging forum shopping and abuse of court process, stating that applicants "in general and the present applicant in particular, are strongly discouraged from forum shopping and in the process abusing court process." The court also commented critically on the invocation of constitutional provisions, remarking that they appeared to be referred to merely to give "flavour" to otherwise unmerited submissions so that they would be "high sounding," and noting such provisions were of no relevance to the determination of the jurisdictional question. The court clarified that it was not denying the applicant constitutional rights, but simply pronouncing that the application was made at the wrong forum. The court also noted that the application was "ill-conceived."
This case clarifies the jurisdiction of the High Court in bail variation matters and establishes important principles regarding the status of High Court orders made on appeal from magistrate court bail decisions. It confirms that such orders, by virtue of section 121(7) of the Criminal Procedure and Evidence Act, become orders of the magistrate court and can only be varied by the magistrate court or by the High Court on further appeal. The case also addresses the issue of forum shopping and abuse of process in bail variation applications, discouraging applicants from repeatedly approaching the High Court directly for variations of what are effectively magistrate court orders.