[2015] KEHC 8485 (KLR)
The High Court found that the bond and bail terms imposed by the trial magistrate were excessive and unreasonable, given the nature of the offence and the value of the goods allegedly stolen. The magistrate failed to consider relevant factors such as the accused's lack of flight risk and the proportionality of the...
Source-derived case information.
- Citation
- [2015] KEHC 8485 (KLR)
- Parties
- Applicant: Lilian Akinyi Alex; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Criminal Revision 62 of 2015
- Procedural Posture
- Criminal Revision / Ruling on Revision of Bail and Bond Terms
- Outcome
- Bail and bond terms set aside; matter remitted for variation of terms.
- Judges
- DAS Majanja
- Legal Topics
- Bail and Bond, Judicial Discretion, Constitutional Rights, Pretrial Release
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Akinyi Alex
Applicant
Republic
Respondent
Procedural Posture
Criminal Revision / Ruling on Revision of Bail and Bond Terms
Legal Issues
- 1 Whether the bail and bond terms imposed by the trial magistrate were excessive and unreasonable.
- 2 Whether the accused's constitutional right to bail was infringed by the terms set by the subordinate court.
Ratio Decidendi
The High Court found that the bond and bail terms imposed by the trial magistrate were excessive and unreasonable, given the nature of the offence and the value of the goods allegedly stolen. The magistrate failed to consider relevant factors such as the accused's lack of flight risk and the proportionality of the bail terms to the alleged offence. The effect of the excessive bail was to deny the accused her constitutional right to bail. The High Court exercised its revisionary jurisdiction to set aside the bail and bond terms and directed the trial magistrate to vary the terms in accordance with constitutional principles and the outlined factors.
Court Disposition
Bail and bond terms set aside; matter remitted for variation of terms.
Orders
- The bail and bond terms granted on 8th May 2015 are set aside.
- The accused, Lilian Akinyi Alex, shall appear before the trial magistrate forthwith for variation of bond terms in accordance with the principles outlined by the High Court.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT HOMA BAY
CRIMINAL REVISION NO. 62 OF 2015
IN THE MATTER
OYUGIS SENIOR PRINCIPAL MAGISTRATES COURT
CRIMINAL CASE NO. 276 OF 2015
AND IN THE MATTER OF
LILIAN AKINYI ALEX
RULING
This matter was brought to my attention by the Officer in Charge, Kisii GK Prison for me to examine the record of proceedings before the subordinate court and satisfy myself of the legality and propriety of the findings and orders made therein and exercise the powers of revision under section 362 of the Criminal Procedure Code (Chapter 75 of the Laws of Kenya).
LILIAN AKINYI ALEX was charged with the offence of burglary contrary to section 304(2) and stealing contrary to section 879(b) of the Penal Code (Chapter 63 of the Laws of Kenya). It was alleged that on the night of 5th May 2015 in Oyugis Township, Rachuonyo South District within Homa Bay County, she broke and entered into in a store of CAREN ACHANDO ANGERA with intent to steal and did steal therein 15 fish and 10 litres of cooking fat the property of the said CAREN ACHANDO ANGERA all valued at Kshs. 16,300/-.
She was arraigned in court on 8th May 2015, pleaded not guilty and remanded in custody until 15th July 2015 when the case comes up for hearing. In order to secure her release, the learned magistrate directed her to furnish a bond of Kshs. 50,000/- with a surety of the same amount or deposit cash bail of Kshs. 25,000/-.
Under Article 49(1)(h) of the Constitution, an arrested person has the right to be released on bail unless there are compelling reasons to warrant such denial. The said provision states as follows;
An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
The setting of bail terms is therefore discretionary and the power to exercise such discretion vests in the trial court. It cannot be gainsaid that such discretion must be exercised judiciously to meet the ends of justice. The court will normally consider a range of factors including the gravity of the offence, the severity of the sentence in the event a conviction is entered, the accused’s character and antecedents, if any, whether the accused is a flight risk, the likelihood of interference with witnesses, the need to protect witnesses amongst other factors. In considering these factors the court must always remember that it is applying a provisions of the Constitution, in which case, it must, in accordance with Article 20(1)(b) of the Constitution interpret and apply the right in a manner that most favours enforcement of the right or fundamental freedom.
Applying the above principles, I find that the bond and bail terms imposed by the learned magistrate were excessive and unreasonable and the effect thereof was to deny the accused the right to bail. The learned magistrate did not take into account the nature of the offence and the value of the goods allegedly stolen. There was no evidence that the accused was a flight risk who would not attend her trial if released on bail.
In the circumstances, I revise and set aside the bail and bond terms granted on 8th May 2015 and direct that the accused, LILIAN AKINYI ALEX appear before the trial magistrate forthwith for variation of bond terms in light of the principles I have outlined.
DATEDandDELIVEREDatHOMA BAYthis6th day of July 2015.
D.S. MAJANJA
JUDGE