[2015] KEHC 2278 (KLR)
The court found that the applicants have a fixed abode and strong family ties within the jurisdiction, as evidenced by the pre-bail reports and the fact that they own and reside on family land in Kieni West District. The court determined that the state's argument regarding lack of fixed abode was not supported by...
Source-derived case information.
- Citation
- [2015] KEHC 2278 (KLR)
- Parties
- Applicant: P N M; Applicant: M N M; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2013
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- application for bail pending trial granted
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Flight Risk, Right to Bail
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P N M
Applicant
M N M
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial under Article 49(i)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the applicants bail, specifically the alleged lack of fixed abode and risk of flight.
Ratio Decidendi
The court found that the applicants have a fixed abode and strong family ties within the jurisdiction, as evidenced by the pre-bail reports and the fact that they own and reside on family land in Kieni West District. The court determined that the state's argument regarding lack of fixed abode was not supported by the evidence. The fact that the applicants were arrested away from home did not, in itself, establish that they were a flight risk, especially since there was no evidence of attempts to evade arrest prior to being charged. Consequently, the court held that there were no compelling reasons to deny the applicants bail and granted the application subject to specified conditions.
Court Disposition
application for bail pending trial granted
Orders
- Each applicant shall execute a bond of Kshs. 1,000,000 with two sureties of the same amount.
- Applicants shall not leave the jurisdiction of the court without prior permission.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CRIMINAL CASE NO. 5 OF 2013
P N M………….............................……1ST ACCUSED /APPLICANT
M N M……....................................…….2ND ACCUSED/APPLICANT
VERSUS
REPUBLIC……………………………………………RESPONDENT
RULING
The applicants are husband and wife and they have both been charged with murder contrary to section 203 as read with section 204of the Penal Code. It is stated in the particulars of the offence that on diverse dates between the 8th day of February, 2013 and 20th day of February, within Nyeri County, the applicants murdered D M N.
The record shows that they were charged on 12th March, 2013 when they both entered a plea of not guilty. On 4th February, 2014, the court directed the state to file an affidavit if it was opposed to the applicants being released on bail. Again on 24th June, 2014, the court directed the probation officer in charge of Kieni West to prepare and file a pre-bail report to enable the court make a decision on whether the applicants can be released on bail.
The application for bail was finally argued on 6th May, 2015 and as usual in such applications, counsel for the accused invoked article 49(i) (h)of the Constitution which guarantees an accused person the right to bail pending trial unless there are compelling reasons against such admission.
In the affidavit filed in opposition to the application for bail, the state opposed the application mainly on the ground that the applicants are a flight risk and that they are likely to abscond because they do not have a fixed abode.
The pre-bail report filed by the probation officer of Nyeri Central on 16th September, 2014 showed, however, that the 1st accused person is the second born in a family of four and that this family owns a two-acre parcel of land in Kieni west District where he lives with the rest of the members of his family. One acre of that parcel is divided amongst the first applicant and his three brothers.
The 1st applicant as noted is the husband to the 2nd applicant and until the time they were arrested and charged they lived on their parcel of land at Kieni with their only child DMN who they are alleged to have murdered.
The pre-bail report in respect of the 2nd applicant showed that she was married to the 1st applicant and they lived together as husband and wife at the 1st applicant’s home though their marriage was troubled.
In view of the findings by the probation officer on the applicant’s social background, it is apparent that the state’s argument that the applicants do not have a fixed abode cannot stand and certainly it cannot be what would be considered a compelling reason to deny the applicants bail.
The state also argued that the applicants were arrested away from their home and therefore they could be a flight risk. It may be true that the applicants were arrested at other places away from their home but that in itself does not suggest that they are a flight risk. I note that they were arrested on or about the same time the offence is alleged to have been committed; there is no evidence that before then, any attempts had been made to arrest the applicants.
I am inclined to grant the applicants’ application for bail pending trial; they will be released on the following conditions:-
1. Each of the applicants shall execute a bond of Kshs. 1 Million with two sureties of the same amount.
2. The applicants shall not leave the jurisdiction of this court without the court’s prior permission.
3. The applicants shall report to the Deputy Registrar, High Court Nyeri, once every month pending the hearing and determination of their trial.
It is so ordered.
Dated, signed and delivered in open court this 2nd day of October, 2015
Ngaah Jairus
JUDGE