Kenya Judgment

High Court · High Court at Nairobi (Milimani Law Courts)

Fred Onyango Orimba v Republic [2021] KEHC 5654 (KLR)

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Source document

01

Holding and result

The court found that the applicant had demonstrated special circumstances warranting a review of the bond terms, including prolonged custody due to inability to meet the original terms and the prevailing Covid-19 pandemic necessitating decongestion of remand facilities. The court noted that the prosecution's concerns regarding interference with witnesses had already been considered in the earlier ruling and did not present new grounds to deny the application. Consequently, the court exercised its discretion to revise the bond terms to make them more attainable for the applicant while maintaining the integrity of the judicial process.

Court disposition

application for revision of bond terms allowed

Orders

  • Bond of Ksh. 1 million with 1 surety of a similar amount granted to the accused.
  • In the alternative, cash bail of Ksh. 100,000 granted to the accused.
  • All other terms of bond as ordered on 29.1.2020 to remain as earlier ordered.

02

Material facts

Parties

Fred Onyango Orimba

Applicant Counsel: Ms. Murito

Director of Public Prosecutions (DPP)

Respondent Counsel: Ms. Kimani

Amounts and remedies

  • Original Bond Amount: KES 2,000,000
  • Original Cash Bail: KES 200,000
  • Revised Bond Amount: KES 1,000,000
  • Revised Cash Bail: KES 100,000

03

Procedural history

  1. Posture

    Criminal Case / Ruling on Application for Review of Bond Terms

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant, through counsel, argued for a review of bond terms citing special circumstances: poor background, married with two children, and prolonged custody since 2019 due to inability to meet the set bond. Counsel referenced Republic Versus Evans Ochieng (2019) eKLR and emphasized the need for reasonable bail terms, also noting the impact of the Covid-19 pandemic and the necessity to decongest prisons.
Respondent
The prosecution opposed the application, contending that the applicant had not demonstrated any effort to secure the existing bond terms and raised concerns about the likelihood of interference with prosecution witnesses if released.

05

Court’s reasoning

  1. 01

    Republic Versus Evans Ochieng (2019) eKLR

    Courts have discretion to review and revise bail or bond terms upon demonstration of special circumstances or change in circumstances.

  2. 02

    Constitution of Kenya, Article 49(1)(h)

    The right to reasonable bail terms is subject to considerations of the accused's ability to meet the terms and the need to prevent interference with witnesses.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant had demonstrated special circumstances warranting a review of the bond terms, including prolonged custody due to inability to meet the original terms and the prevailing Covid-19 pandemic necessitating decongestion of remand facilities. The court noted that the prosecution's concerns regarding interference with witnesses had already been considered in the earlier ruling and did not present new grounds to deny the application. Consequently, the court exercised its discretion to revise the bond terms to make them more attainable for the applicant while maintaining the integrity of the judicial process.

Obiter and limits

  • The court took judicial notice of the Covid-19 pandemic and the need to decongest prisons and remand facilities.
  • All other terms of bond as previously ordered remain in force.

Court disposition

application for revision of bond terms allowed

  • Bond of Ksh. 1 million with 1 surety of a similar amount granted to the accused.
  • In the alternative, cash bail of Ksh. 100,000 granted to the accused.
  • All other terms of bond as ordered on 29.1.2020 to remain as earlier ordered.

Source and reliance status

High Court

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Judgment text

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Source document

High Court

Judgment

[2021] KEHC 5654 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL CASE NO. 5 OF 2020

FRED ONYANGO ORIMBA ..........................ACCUSED

VERSUS

DPP.................................................................REPUBLIC

RULING

This matter now comes up for the application of the accused/applicant dated 14. 10.

2020. At prayer (b) of the same, the applicant prays for review of the terms of bond issued herein in favour of the accused. The accused had been granted a bond of Kshs.2 million with 1 surety of a similar amount with an alternative of Ksh.200,000/=in cash bail. Counsel for the accused has urged the court to take into account the special circumstances of the accused, being of poor background, married with 2 children. Also that he has been in custody since 2019. She relied on the decision of Republic Versus Evans Ochieng (2019)eKLR, and pleaded for reasonable terms of bail.

The prosecution, on the other hand, has opposed this application on grounds that the applicant has not shown that he has put any efforts at securing the terms of bond. Also of likelihood of interference with witnesses.

I have considered the submissions of both sides. This is an application for revision of this court’s orders of 29. 1.2020. Prior to the said ordered, the court considered the objections of the prosecution. A considered ruling was made on the same. The objection of the prosecution on the fact that if released, the accused is likely to interfere with prosecution witnesses, was well considered in the said ruling.

Special circumstances have been pleaded in this present application. That he has been in custody since 2019 for inability to meet the terms of bond as set. I have taken note of this. I have further taken note of the current Covid-19 pandemic and the need to decongest the prisons and remand facilities. It is for these reasons that I find merit in the applicant’s application for revision of the terms of bail. I allow the same and order that the accused may be released on revised conditions as follows:-

1. Bond of Ksh. 1 million with 1 surety of a similar amount.

2. In the alternative a cash bail of Ksh.100,000.

All the other terms of bond as ordered on 29. 1.2020 to remain as earlier ordered. Orders accordingly.

D. O. OGEMBO

JUDGE

30. 6.2021.

Court:

Ruling read in court (on-line) in presence of the accused (Nairobi Remand), Ms. Murito for accused and Ms. Kimani for the state.

D. O. OGEMBO

JUDGE

30. 6.2021.

Court:

In the presence of the parties, a hearing date to be fixed. Hearing 29. 9.2021.

D. O. OGEMBO

JUDGE

30. 6.2021.

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Republic Versus Evans Ochieng (2019) eKLR

Case cited

Constitution of Kenya, Article 49(1)(h)

Legislation

Legislation referenced in the available case record.

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