[2015] KEHC 2133 (KLR)
The court found that, although the Constitution guarantees the right to bail, this right is not absolute. The applicants were found to be habitual offenders, with one serving a sentence for a related offence. The deceased was their uncle, and most relatives opposed their release. There was a real risk of lynching if...
Source-derived case information.
- Citation
- [2015] KEHC 2133 (KLR)
- Parties
- Applicant: Joshua Muchui Kairera alias Edwin Kathurima Mputhia; Applicant: James Kimathi alias Dancun Kimathi Muriira; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 28 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bond Application Pending Trial
- Outcome
- application for bond declined; applicants to remain in remand pending hearing of their cases.
- Judges
- RPV Wendoh
- Legal Topics
- Bail and Bond, Compelling Reasons, Presumption of Innocence, Flight Risk
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joshua Muchui Kairera alias Edwin Kathurima Mputhia
Applicant
James Kimathi alias Dancun Kimathi Muriira
Applicant
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Bond Application Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to be released on bond pending trial.
- 2 Whether there exist compelling reasons to deny the applicants bond as provided under the Constitution.
Ratio Decidendi
The court found that, although the Constitution guarantees the right to bail, this right is not absolute. The applicants were found to be habitual offenders, with one serving a sentence for a related offence. The deceased was their uncle, and most relatives opposed their release. There was a real risk of lynching if released, as one suspect had already been lynched, and the applicants had previously escaped such an attempt. The witnesses are family members who may feel intimidated if the applicants are released. These factors constituted compelling reasons to deny bond, both for the applicants' safety and to preserve the integrity of the trial process.
Court Disposition
application for bond declined; applicants to remain in remand pending hearing of their cases.
Orders
- The application for bond is declined.
- The accused will remain in remand pending hearing of their cases.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 28 OF 2015
JOSHUA MUCHUI KAIRERAALIAS
EDWIN KATHURIMA PUTHIA ... 1ST ACCUSED/APPLICANT
JAMES KIMATHIALIAS
DANCUN KIMATHI MURIIRA … 2ND ACCUSED/APPLICANT
V E R S U S
REPUBLIC....................................................... PROSECUTOR
RULING
JOSHUA MUCHUI KAIRERAaliasEDWIN KATHURIMA MPUTHIAandJAMES KIMATHI alias DANCAN KIMATHI MUMIRA (the applicants) face a charge of murder contrary to Section 203 as read with Section 204 of the PC. The applicants have brought an application seeking to be released on bond pending the hearing of the case. The applicants have sworn affidavits that they have an unqualified Constitutional right to bond; that they are presumed innocent until proved guilty; that they are ready to abide by any conditions that the court will impose.
The application was opposed by IP WAFULA WANDILI, the Investigation Officer, who deposed that the right to bail is not absolute; that the accused reside in the same locality as the witness and are likely to interfere with them; that the murder occurred recently and their release may arouse vengeful feelings in the community which might lead to commission of other offences; that 1st accused is serving sentence at Kangeta GK Prison and accused 2 is remanded at Meru GK Prison and not suitable for release on bond because they are a flight risk.
This court asked for pre-bail reports which have been filed in respect of each accused.
Bail is a Constitutional right to an accused under Article 49 (1) of the Constitution but the said right is not absolute because if there are compelling reasons to deny bond, the court will not grant it. In this case, both accused are said to be habitual offenders with accused 1 serving sentence for a related offence; the deceased was both accused’s uncle and most of the relatives are not willing to have them released on bond. It was also disclosed that the applicants escaped lynching as one of the suspects was lynched and they are likely to be lynched if released and so it is for their own good that they remain in custody. The witnesses are members of the same family and if released they, may feel intimidated by the presence of the applicants. For all the above stated reasons, I am satisfied that there are compelling reasons that warrant me to deny applicants bond. The application for bond is declined. The accused will remain in remand pending hearing of their cases.
DATED, SIGNED AND DELIVERED THIS 9TH DAY OF OCTOBER, 2015.
R.P.V. WENDOH
JUDGE
9/10/2015
PRESENT
Mr. Mulochi for State
Mr. Igweta Holding Brief for Mr. Kogora for Accused
Peninah, Court Assistant
Both present - Accused