[2013] KEHC 6439 (KLR)
The court found that the prosecution had not advanced compelling reasons to deny bail to the applicants. The applicants provided further particulars of their family backgrounds, reinforcing their ties to the community and reducing the risk of flight. The court considered its earlier ruling and the additional...
Source-derived case information.
- Citation
- [2013] KEHC 6439 (KLR)
- Parties
- Applicant: Mohamed Mohamud Abdi; Applicant: Abdi Ali Abdi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 22 of 2012
- Procedural Posture
- Bail Application / Ruling on Renewed Bail Application Pending Trial
- Outcome
- application allowed; applicants admitted to bail
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Flight Risk, Repeat Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Mohamud Abdi
Applicant
Abdi Ali Abdi
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Renewed Bail Application Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial despite a previous similar application having been determined.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail to the applicants.
- 3 Whether there has been a change in circumstances since the previous bail application.
Ratio Decidendi
The court found that the prosecution had not advanced compelling reasons to deny bail to the applicants. The applicants provided further particulars of their family backgrounds, reinforcing their ties to the community and reducing the risk of flight. The court considered its earlier ruling and the additional information provided in the current application. On balance, the court was not persuaded that the applicants posed a flight risk or that there were other compelling reasons to deny bail. Accordingly, the court admitted the applicants to bail on specified terms.
Court Disposition
application allowed; applicants admitted to bail
Orders
- Each applicant to execute a bond of KES 1,500,000 with a surety of similar amount.
- In the alternative, each applicant to deposit a cash bail of KES 1,000,000.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT G ARISSA
CRIMINAL CASE NO 22 OF 2012
MOHAMED MOHAMUD ABDI
ABDI ALI ABDI……………………………………………….APPLICANTS
VERSUS
REPUBLIC………………………………………………….RESPONDENT
RULING
The two applicants are charged jointly with three others with the offence of murder. They appear as 1st and 2nd accused persons in the main case. They have come to court under the provisions of the Constitution (Articles 49 (1) (h) and 50 (2) (a)) seeking to be admitted to bail pending the hearing and determination of this case. The application is dated 13th March 2013 and is supported by an affidavit of their defence counsel sworn and filed on the same date.
This is not the first application by the applicants on the same issue. They appeared in court on 17th October 2012 and prosecuted a similar application. The court determined the application and gave its ruling on 26th November 2012. In that application, bail was being sought for all the five accused persons. In this particular application, two of the five accused persons are the applicants. I have read the lengthy affidavit in support of the application. Other than paragraphs 9, 10 and 11 of the said affidavit, the rest of the paragraphs are not helpful to the applicants. The averments contained in the other paragraphs are matters that are better left out for evidence in the main case.
Paragraph 9 gives the family information in respect of the 1st applicant while paragraph 10 gives the family background in respect of the 2nd applicant. In his submissions, counsel for the applicants has told the court that the applicants are not a flight risk and they are firmly grounded at Madogo where they live with their families. It was further submitted that the evidence so far adduced does not implicate the applicants and for that reason they will have no reason to flee.
The application has been opposed with the learned State Counsel submitting that there is yet more evidence to be adduced in support of the prosecution case; that the compelling reasons to deny bail ought not to be beyond reasonable doubt but on a balance of probability; that the applicants had brought a similar application and they are required to show that circumstances have changed.
I have considered the application in detail. I am also alive to this court’s earlier ruling where I observed that 1st applicant has family roots in Madogo, Tana River County where he lives with his family and 2nd applicant also lives with his family in Madogo. Additionally the 1st and 2nd applicants have in paragraphs 9 and 10 of the affidavit in support of the current application provided further particulars of some of their relatives. In my considered view the prosecution has not advanced compelling reasons to persuade this court to deny bail to the applicants. I will and do hereby admit the two applicants to bail/bond on the following terms:
Each applicant, being 1st and 2nd accused persons in the main case, will execute a bond of one and half million Kenya shillings (Kshs 1,500,000) with a surety each of similar amount.
In the alternative each applicant will deposit a cash bail of one million Kenya shillings (Kshs 1,000,000).
I make orders accordingly.
S.N MUTUKU
JUDGE
Dated and delivered this 17th day of July 2013.