[2016] KEHC 74 (KLR)
The court found that the applicant had not breached any bond terms and that the continued detention pending identity verification, especially after the lapse of the stipulated period for producing the report, was unlawful. The court held that the issue of identity could be resolved while the applicant was out on...
Source-derived case information.
- Citation
- [2016] KEHC 74 (KLR)
- Parties
- Applicant: Benard Omboga Nyaega; Respondent: State
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 2 of 2016
- Procedural Posture
- Miscellaneous Criminal Application / Ruling on Bail Pending Trial
- Outcome
- application allowed; applicant to be released on enhanced bond terms
- Judges
- CB Nagillah
- Legal Topics
- Bail Pending Trial, Right to Bond, Identity Verification, Unlawful Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Omboga Nyaega
Applicant
State
Respondent
Procedural Posture
Miscellaneous Criminal Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the continued detention of the applicant pending identity verification is lawful.
- 2 Whether the applicant is entitled to be released on bond pending the hearing and determination of his case.
- 3 Whether the issue of identity can be resolved while the applicant is out on bond.
Ratio Decidendi
The court found that the applicant had not breached any bond terms and that the continued detention pending identity verification, especially after the lapse of the stipulated period for producing the report, was unlawful. The court held that the issue of identity could be resolved while the applicant was out on bond, as there was no evidence that the applicant could influence the registrar of persons. The right to liberty and the presumption of innocence under Article 49(1)(h) of the Constitution outweighed the justification for continued detention. The court therefore ordered the applicant's release on the original bond terms, with an enhancement to include a cash bail, and imposed a...
Court Disposition
application allowed; applicant to be released on enhanced bond terms
Orders
- The accused is set at liberty on bond terms as originally set, with an enhancement to include Kshs.30,000 cash bail.
- The accused shall attend court every month for mention of his case until the hearing and determination of his case in the subordinate court.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
MISC. CRIMINAL APPLICATION NO.2 OF 2016
BENARD OMBOGA NYAEGA…………..........................APPLICANT
-VERSUS-
STATE……………………………………....................RESPONDENT
RULING
This application is brought by Bernard Omboga Nyaega to be set at liberty pending the hearing and determination of his case in the subordinate court. This sets out seven (7) grounds thereof for his application. These are:
A. The applicant herein had been released on bond pending the hearing and determination of his case in the subordinate court.
B. That during the cross-examination a prosecution witness, it arose that the names of the applicant were not the ones appearing on the charge sheet.
C.That the applicant herein did not breach any bond terms and conditions set by the subordinate court.
D.That the applicant was detained pending verification of identity from the Directorate of Criminalinvestigations at Nairobi.
E.That the period of 21 days for the report to be produced in court lapsed
F. That the applicant is still detained at Kisii Prisons and as such his detention is unlawful.
G.That the state will not suffer any prejudice if the applicant is released pending the hearing and determination of his case in the subordinate court.
The genesis of this matter was that in a charge sheet, one John Mong'are Nyaega was charged for grievous harm contrary to Section 234 of the Penal Code, on both Counts I, II &IIIrespectively.
However, upon cross-examination in his Criminal Case No. 323 of 2014,it turned out that the accused was known as Bernard Omboga Nyaega, I/D No.12898522.
The person charged being John Mong'are Nyaega was given bond of Kshs.100,000 with one surety.
On 2nd December 2015 in view of the development of the real identity of the accused person, the trial magistrate, despite bond terms, that the accused be remanded in Kisii prison on 16/12/2015 until the report of the registrar of persons is received to clarify the identity situation. Todate this report has not been obtained.
The accused person when charged and before the hearing and determination of his case is deemed and presumed innocent and thus the constitution accords him/her the right to bond, see Article 49 (i) (h) of the constitution.
The issue of identity must be sorted out in one way or the other. Being remanded is not helpful to sorting out the identity issue. This could still be sorted out while the accused is out on bond.
The court is of the view that the registrar of persons cannot be influenced by the accused person.
FINDINGS
This court, accordingly, will set the accused at liberty on bond terms as originally set but will enhance the same to include Kshs.30,000 cash bail.
The accused to attend court every month for mention of his case until the hearing and determination of his case in the subordinate court.
It is so ordered.
Dated at Nyamira this 14th day of March, 2016.
C. B. NAGILLAH
JUDGE
In the presence of:
Nyamwange hold brief for the applicant
Malesi for the Respondent
Mercy - Court Clerk