[2011] KEHC 2042 (KLR)
The court found that under Article 49(1)(h) of the Constitution, the applicants have a right to bail unless the prosecution provides compelling reasons to deny it. In this case, the prosecution failed to file any replying affidavit or present any compelling reasons despite being given opportunities to do so. As a...
Source-derived case information.
- Citation
- [2011] KEHC 2042 (KLR)
- Parties
- Applicant: Duncan Muriuki Muketa; Applicant: Patrick Wahome Wachira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 44 of 2010
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- application for bail allowed
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Murder Charge, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Duncan Muriuki Muketa
Applicant
Patrick Wahome Wachira
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether the prosecution has provided compelling reasons to deny bail.
Ratio Decidendi
The court found that under Article 49(1)(h) of the Constitution, the applicants have a right to bail unless the prosecution provides compelling reasons to deny it. In this case, the prosecution failed to file any replying affidavit or present any compelling reasons despite being given opportunities to do so. As a result, there was no basis for the court to deny the applicants their constitutional right to bail. The court therefore admitted each applicant to bail on the specified terms.
Court Disposition
application for bail allowed
Orders
- Each applicant to be released upon signing a bond of Ksh. 500,000 with two sureties of like sum.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CRIMINAL CASE NO. 44 OF 2010
DUNCAN MURIUKI MUKETA.....................................................................................1ST APPLICANT
PATRICK WAHOME WACHIRA..............................................................................2ND APPLICANT
VERSUS
REPUBLIC......................................................................................................................RESPONDENT
RULING
Pursuant to the provisions ofArticle 49 (1) (h) of the Constitution, Duncan Muriuki Muketa and Patrick Wahome Wachira being the 1st and 2nd Applicants herein, took out the Motion dated 22nd March 2011 in which they applied to be released on bail/bond pending trial. They each swore an affidavit filed in support of the application. When the Motion came up for interpartes hearing, on 30th May 2011, Mr. Makura, learned Senior State Counsel, applied for an adjournment to enable him secure the replying affidavit of the investigating officer to oppose application. The Motion was then adjourned to 30th June 2011 for hearing. On the aforesaid date, Mr. Makura again, failed to file a replying affidavit hence the Motion proceeded for hearing as unopposed.
The Applicants are before this Court on the information of the Honorable Attorney general dated 23rd November 2010 duly charged with the offence of murder contrary toSection 203 as read with Section 204 of the Penal Code. The particulars of the offence are that on the 5th day of November 2010, at Mt. Kenya Mwea B village in Nyeri North District, within Central Province, the duo are alleged to have jointly murdered Gerishom Gatere Karuma. They are now seeking to be released on bond/bail pending trial. Under Article 49(1) (h) of the Constitution, any person arrested for any offence has a right to be released on bond or bail, on reasonable terms pending trial unless there are compelling reasons not to be released. The burden of giving the compelling reasons is placed on the prosecution. In this case the prosecution successfully applied for an adjournment to enable them file a replying affidavit to bring forth the compelling reasons. Those reasons have not been given. I have no reason why I should deny the accused persons bail. I hereby admit each one of them to bail. I hereby order that Duncan Muriuki Muketa and Patrick Wahome Wachira be released upon each one of them signing a bond of Ksh.500,000/= with two sureties of like sum.
Dated and delivered at Nyeri this 15th day of July 2011.
J. K. SERGON
JUDGE
In open court in the presence of Miss Muchoki for the Applicants and Miss Ngalyuka for the State.