[2019] KEHC 1756 (KLR)
The court found that although the applicants had previously faced multiple cases, those matters had been finalized or withdrawn, and there was no evidence to suggest a continuing risk of absconding. The trial court had exercised its discretion in setting the original bond terms, but given the changed circumstances...
Source-derived case information.
- Citation
- [2019] KEHC 1756 (KLR)
- Parties
- Applicant: Patrick Arube Nyabera; Applicant: James Kimani Njoki; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Appeal 15 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Vary Bond Terms
- Outcome
- application for variation of bond terms partially allowed; application for legal representation declined
- Judges
- RPV Wendoh
- Legal Topics
- Bond Variation, Right to Bail, Judicial Discretion, Legal Aid, Robbery With Violence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Arube Nyabera
Applicant
James Kimani Njoki
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Vary Bond Terms
Legal Issues
- 1 Whether the bond terms imposed by the trial court should be varied in favour of the applicants.
- 2 Whether the applicants are entitled to cash bail or reduction in the number of sureties required.
- 3 Whether the applicants are entitled to state-funded legal representation for the offence of robbery with violence.
Ratio Decidendi
The court found that although the applicants had previously faced multiple cases, those matters had been finalized or withdrawn, and there was no evidence to suggest a continuing risk of absconding. The trial court had exercised its discretion in setting the original bond terms, but given the changed circumstances and the constitutional right to bail, the court determined that the bond terms should be varied. However, due to the seriousness of the offence (robbery with violence), the court declined to grant cash bail and instead reduced the bond amount and the number of sureties required. The court also held that, despite the constitutional guarantee of a fair hearing, state-funded legal...
Court Disposition
application for variation of bond terms partially allowed; application for legal representation declined
Orders
- Each applicant may be released on bond of Kshs.500,000 with one surety of the same amount.
- Application for cash bail is declined.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAHURURU
MISC.CR.APP.NO.15 OF 2018
PATRICK ARUBE NYABERA......1ST APPLICANT
JAMES KIMANI NJOKI..............2ND APPLICANT
- V E R S U S –
REPUBLIC.........................................RESPONDENT
R U L I N G
The two applicants Patrick Arube Nyabera and James Kimani Njoki were jointly with the offence of Robbery with violence contrary to Section 296(2) of the Penal Code.
They were given bond of Kshs.650,000/= with 2 sureties of the same amount. They filed an application on 6/7/2018 seeking variation of the bond terms. The 1st applicant claims that he is not able to afford two sureties and prays for one surety. The 2nd applicant prays that he be released on Cash Bail as he is not able to raise sureties.
I have generally perused the file. Unless it was not recorded, I have not seen any record of an application for variation of the bond terms made before the trial court.
Ms. Rugut opposed the said application for reasons that the applicants are facing other cases in other courts, in Kericho, Bomet and Nairobi. She urged the court to decline the request.
In reply to the learned counsel, both applicants indicated that the other cases they were facing have either been withdrawn or finalized. There was no evidence of the judgments save for the committal warrants which indicated that the cases had been finalized.
Bond is a Constitutional right that is guaranteed under Article 49(1) of the Constitution. The trial court did exercise its discretion and granted the accused persons bond of Kshs.650,000/= considering that they faced several cases and as a result, this case has taken so long to prosecute because the applicants would be before other courts forcing the trial court to adjourn this matter. The other cases are now over.
Having considered all the other factors, this court hereby varies the bond terms. Each applicant may be released on bond of Kshs.500,000/= with one surety of the same amount. Due to the seriousness of the offence, I am reluctant to grant Cash Bail.
The applicants also seek to be accorded legal representation. Though the Constitution guarantees the right to fair hearing to include legal representation, the State has not yet provided for pro bono services for everyone. Legal aid is only availed to murder suspects in the High Court and children offenders.
So far there is no legal representation for offences of robbery with violence. Even if I were to grant the order, it would be in vain.
Dated and Signed at NYAHURURU this 26thday of November, 2018.
………………………………..
R.P.V. Wendoh
JUDGE
PRESENT:
Ms. Rugut for the State
Soi – Court Assistant
Applicants - present