[2001] KEHC 226 (KLR)
The court found that the primary consideration in granting bail is the likelihood of the accused attending court when required. The applicants are yet to be tried, and the offences are bailable. The court determined that the bond terms imposed by the lower court were excessively harsh and not justified solely on the...
Source-derived case information.
- Citation
- [2001] KEHC 226 (KLR)
- Parties
- Applicant: Cry Magloire Fouasso; Applicant: Ndjengue Elie Mohamed; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 292 of 2001
- Procedural Posture
- Criminal Application / Application for Variation of Bail Terms
- Outcome
- application allowed in part; bail terms varied
- Judges
- JK Mitey
- Legal Topics
- Bail Variation, Bond Terms, Pretrial Release
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cry Magloire Fouasso
Applicant
Ndjengue Elie Mohamed
Applicant
Republic
Respondent
Procedural Posture
Criminal Application / Application for Variation of Bail Terms
Legal Issues
- 1 Whether the bail terms imposed by the lower court were excessively harsh and should be varied.
- 2 Whether the applicants, as foreigners, present a flight risk justifying stringent bail terms.
Ratio Decidendi
The court found that the primary consideration in granting bail is the likelihood of the accused attending court when required. The applicants are yet to be tried, and the offences are bailable. The court determined that the bond terms imposed by the lower court were excessively harsh and not justified solely on the basis that the applicants are foreigners. The court therefore exercised its discretion to vary the bail terms to ensure they are reasonable while still securing the applicants' attendance at trial, including the requirement for a Kenyan surety and regular reporting to the investigating officer.
Court Disposition
application allowed in part; bail terms varied
Orders
- Each applicant to be released on bond of Kshs.100,000 plus a Kenyan surety of like sum.
- Applicants to report to the investigating officer once a week.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
CRIMINAL APPLICATION NO.292 OF 2001
(in the matter of an intended appeal) BETWEEN
CRY MAGLOIRE FOUASSO ………………………………………… APPLICANT
AND
REPUBLIC………………………………………………….…………. RESPONDENT
CONSOLIDATED WITH MISC. CRIMINAL APPlICATION NO.293 OF 2001
NDJENGUE ELIE MOHAMED ……………………….………….. APPLICANT
VERSUS
REPUBLIC ………………………………………………………….. RESPONDENT
R U L I N G
The 2 applicants have applied for variation of bail terms that were imposed by Kibera Senior Principal Magistrate in Criminal Case No.1892 of 2001. The Magistrate ordered that each of the applicants may be released on bond of Kshs.300,000/= plus one Kenyan surety of like sum. The applicants are jointly charged with obtaining Kshs.350,000/= from Alice Wachira on 5/3/2001 by falsely pretending that the applicants could triple that money. They are also separately charged with being unlawfully present in Kenya contrary to section 3(1) of the Immigration Act. Both the offences with which the applicants are charged are bailable.
The application is opposed by Learned State Counsel who said that the applicants are foreigners and that they would be tempted to escape if the bail terms are reduced.
In an application for bond the main consideration by the court is whether an accused person will attend court when required. Other considerations are peripheral. The applicants are yet to be tried on the charges. I find that the terms of bond imposed by the lower court are harsh. I vary the same as follows:-
(a) That each applicant be released on bond of 100,000/= plus a Kenyan surety of like sum.
(b) The applicants to be reporting to the investigating officer once a week.
(c) That the sureties be approved by the Deputy Registrar of this court.
Dated this 7th day of May, 2001.
J.K. MITEY
JUDGE