[2013] KEHC 5618 (KLR)
The court found that there was no evidence to suggest that the applicant's marriage certificate was fake or that he intended to abscond. The applicant demonstrated that the passport was his only means of identification and necessary for financial transactions. The court held that the bail condition requiring deposit...
Source-derived case information.
- Citation
- [2013] KEHC 5618 (KLR)
- Parties
- Applicant: Gino Dicaprio; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 59 of 2013
- Procedural Posture
- Criminal Miscellaneous Application / Ruling
- Outcome
- application partly allowed
- Judges
- GO Shikwe
- Legal Topics
- Bail Conditions, Passport Release, Surety Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gino Dicaprio
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the applicant's passport should be released pending the hearing and determination of the criminal case.
- 2 Whether the applicant has demonstrated sufficient grounds for variation of bail conditions.
Ratio Decidendi
The court found that there was no evidence to suggest that the applicant's marriage certificate was fake or that he intended to abscond. The applicant demonstrated that the passport was his only means of identification and necessary for financial transactions. The court held that the bail condition requiring deposit of the passport could be varied, provided that the applicant furnished a second Kenyan surety of Ksh. 2 million to further secure his attendance at trial. This balance protected both the applicant's rights and the interests of justice.
Court Disposition
application partly allowed
Orders
- The order to deposit the passport is reviewed and varied to the extent that the passport so deposited be released to the applicant on the condition that he furnishes a second Kenyan surety of Ksh. 2 million.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CR. MISC. APLLICATION NO. 59 OF 2013
GINO DICAPRIO …............................................................... APPLICANT
VERSUS
REPUBLIC …...................................................................... RESPONDENT
RULING
This Notice of Motion application dated 9th July, 2013 seeks an order for the release of the Applicants passport No. 720101007 currently deposited in Court vide Criminal Case No. 1231 of 2013.
The salient grounds are that the applicant has no other document of identification except his passport and further that he is experiencing financial difficulties as he cannot access any of his accounts without presentation of his passport.
The application is opposed on the grounds that the passport indicates that he had come to Kenya on Holiday. His place of abode is not shown.
It is common ground that the Applicant is a holder of a British passport.
He has been charged in Court with obtaining by false charges in three Counts and was subsequently released on a bond of Ksh. 2,000,000/= with one Kenyan surety. It was further ordered that he do deposit his passport which he did.
He now prays for the release of the same passport for identification purposes and to do commercial transactions.
I have perused the applicants affidavit in which he depones that he is married to a Kenyan lady by the name of Sarah Macreen Atieno. A marriage certificate marked 'GD 2' is attached.
He has also annexed a copy of his expired passport showing that he has been traveling in and out of the Country and he has no intention to abscond.
There is no evidence to indicate that the marriage certificate is a fake one.
No evidence to show or suspect that he intends to abscond.
The order to deposit the passport is reviewed and varied to the extent that the passport so deposited be released to him on the condition that he furnishes a second Kenyan surety of Ksh. 2 Million.
Ruling dated and delivered in open Court his 18th day of July, 2013.
…..............................
M. MUYA
JUDGE
18TH JULY, 2013
In the presence of:-
Learned State Counsel Tanui
Learned Counsel Mr. Mushelle
Court clerk Musundi