[2011] KEHC 4114 (KLR)
The court held that the applicant is entitled to bail as a matter of right under Article 49(1)(h) of the Constitution unless the prosecution demonstrates compelling reasons to the contrary. The prosecution's arguments regarding the seriousness of the offence, potential for witness interference, and risk of revenge...
Source-derived case information.
- Citation
- [2011] KEHC 4114 (KLR)
- Parties
- Applicant: Joseph Mwenji Mwangi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 112 of 2010
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- application for bail allowed
- Judges
- SP Ouko
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Presumption of Innocence, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwenji Mwangi
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial for a charge of murder.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail.
- 3 Whether the seriousness of the offence or likelihood of interference with witnesses justifies denial of bail.
Ratio Decidendi
The court held that the applicant is entitled to bail as a matter of right under Article 49(1)(h) of the Constitution unless the prosecution demonstrates compelling reasons to the contrary. The prosecution's arguments regarding the seriousness of the offence, potential for witness interference, and risk of revenge attacks were not substantiated with specific evidence. The court emphasized that the seriousness of the charge alone does not constitute a compelling reason to deny bail, and that the presumption of innocence must be upheld. The court also noted that the Constitution does not distinguish between capital and non-capital offences for purposes of bail. The application for bail was...
Court Disposition
application for bail allowed
Orders
- The applicant shall be released on executing a bond of Kshs. 500,000 with two sureties of similar sum.
- If the applicant holds a passport or any other traveling documents, he shall deposit the same in court.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL NO. 112 OF 2010
JOSEPH MWENJI MWANGI......................................................................................APPLICANT
VERSUS
REPUBLIC.................................................................................................................RESPONDENT
RULING
The applicant, Joseph Mwenji Mwangi, is facing a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.
Pending his trial he has brought the instant application for bail. The respondent through the investigating officer, Pius Omundo has opposed the application on the grounds that the applicant is likely to manipulate the witnesses who are his colleagues in the Administration Police; that the evidence against the applicant is overwhelming and the punishment being death sentence, the applicant may be tempted to abscond; that the affected parties may attack the applicant in revenge.
It is common ground that the applicant is entitled, by dint of Article 49(1)(h) of the Constitution to be released on bail or bond as a matter of right.
The court will, however, not release the applicant if the prosecution demonstrates that there are compelling reasons for not releasing him. The paramount consideration in an application for bail pending trial is whether the applicant will attend his trial as ordered by the court, or if he is likely to interfere with the witnesses and the exhibits.
The applicant has deposed that he is an administration police officer, married with a family that depends on him; that he will maintain peace and harmony and will avail himself when and as required. The averment that the applicant may interfere with the witnesses through his colleagues has not been demonstrated how that would be possible.
The mere fact that the applicant has been charged with a serious offence cannot of itself be a compelling reason. To uphold such an argument has the effect of reverting to the repealed Constitution where bail was unavailable in capital offences. That is now part of history. The people of Kenya in passing the Constitution declared in no uncertain terms that bail/bond on reasonable terms will hence forth be available to all persons arrested or charged with any criminal offence only subject to there being no compelling reason.
It is the duty of this court to give effect to the wishes of the people expressed in the Supreme law, the Constitution. The applicant is presumed innocent by the law until the contrary is shown. Regarding the likely punishment, it is now settled that death is not the only punishment for the offence of murder.
See Godfrey Ngotho Mutiso Vs. Republic, Criminal Appeal No.17 of 2008. The Constitution does not differentiate between capital and non-capital offences.
Revenge attacks, otherwise known in Kenya as mob justice is not only primitive but also criminal. In a state based on the rule of law and respect for human rights and freedoms, it is unacceptable even to contemplate such barbaric conduct. It is unacceptable in this age and time to reintroduce the Code of Ammurabi of 1700 BC, based on revenge. It cannot be for the public to decide whether a suspect is guilty or innocent. This role is a preserve of the court.
Finally, the State is bound by Articles 29(c) and 238 to guarantee security and safety to all Kenyans. The inference that prison is the only safe place is misplaced.
For these reasons, the application succeeds. The applicant will be released on bail on the following terms:
i)upon executing a bond of Khs.500,000 with two sureties of similar sum
ii)if he holds a passport or any other traveling documents, to deposit the same in court
iii)he will present himself to this court once a month with effect from 28th February, 2011
iv)he will not leave the jurisdiction of this court without leave of the court
v)he will not have any contact with the prosecution witnesses
vi)if he violates any one of the foregoing terms, the bond shall be cancelled forthwith
Dated, Delivered and Signed at Nakuru this 28th day of January, 2011.
W. OUKO
JUDGE