[2015] KEHC 4184 (KLR)
The court found that although the applicant is constitutionally entitled to bond, the pre-bail assessment report established that his release would pose a significant risk to his safety due to the likelihood of lynching by the community. The applicant also has a previous criminal record and was specifically...
Source-derived case information.
- Citation
- [2015] KEHC 4184 (KLR)
- Parties
- Applicant: Enock Nyabuto Ongeo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 23 of 2014
- Procedural Posture
- Criminal Case / Ruling on Oral Bond Application
- Outcome
- application for bond denied
- Legal Topics
- Bail and Bond, Murder Charge, Compelling Reasons, Pre Bail Assessment, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Enock Nyabuto Ongeo
Applicant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Oral Bond Application
Legal Issues
- 1 Whether the applicant is entitled to bond pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny the applicant bond under Article 49(1)(h) of the Constitution.
- 3 Whether the applicant's safety is at risk if released on bond.
Ratio Decidendi
The court found that although the applicant is constitutionally entitled to bond, the pre-bail assessment report established that his release would pose a significant risk to his safety due to the likelihood of lynching by the community. The applicant also has a previous criminal record and was specifically mentioned by the deceased as a perpetrator. In the absence of a prosecution objection, the court's primary concern was the applicant's safety, which constitutes a compelling reason to deny bond under Article 49(1)(h) of the Constitution. Therefore, the application for bond was denied for the applicant's own protection.
Court Disposition
application for bond denied
Orders
- The application for bond by Enock Nyabuto Ongeo is denied for his own safety.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 23 OF 2014
ENOCK NYABUTO ONGEO………………….………………....APPLICANT
VERSUS
REPUBLIC…………………………………...................……..RESPONDENT
RULING
1. This is an oral application for bond by Enock Nyabuto Ongeo. He is the one of the four accused persons. Accused persons are charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged that on diverse dates of between 18th and 19th January, 2014 at Gesabakwa village, Onywere sub-location in Marani district within Kisii County, jointly murdered Asuma Menge. They all deny the charge. And they would want to be released on bond pending the hearing and determination of their case.
2. Bond/bail is a constitutional right under article 49(1)(h) of the Constitution unless there are compelling reasons to deny that right.
3. The sate/prosecution must file an affidavit if they think the accused should not be released on bond. The state, in this case, has not filed a response to that application by this accused for bond. No objection was raised when the application was being made.
4. However, in the court file, there are two further pre-bail assessment report on two accused persons,
a) Enock Nyabuto Ongeo and (b) John Onchwari.
Enock Nyabuto Ongeo is a male aged 22 years. According to the social inquiry carried out it has been established that Enock has previous criminal records. The community talks negatively about him, from the information they could lynch him if released. He has a criminal record vide No. Criminal case No. 521 of 2012 for the offence of possessing alcohol. And he was a person mentioned by the deceased as one who committed the offence.
5. Accordingly, the application for bond is hereby denied; it is denied for his own safety as being released, he is likely to be lynched by the community.
6. It is so ordered.
Dated and delivered at KISII this 16th day of February, 2015
C.B.NAGILLAH,
JUDGE.
In the presence of:
Okenye for the applicant
Otieno for the respondent
Edwin Mongare Court Clerk.