[2017] KEHC 9568 (KLR)
The court found that the bail condition imposed by the trial court, requiring the Ugandan High Commission not to issue a passport to the applicant, was unreasonable and impossible to comply with. There was no evidence presented that the applicant was a flight risk or would interfere with the trial. The court held...
Source-derived case information.
- Citation
- [2017] KEHC 9568 (KLR)
- Parties
- Applicant: Rajab Gahwerra; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Criminal Application 265 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- Application allowed. Impugned bail condition set aside and substituted with standard bond terms.
- Legal Topics
- Bail and Bond, Compelling Reasons, Flight Risk, Bond Conditions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rajab Gahwerra
Applicant
Republic
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the bail condition imposed by the trial court was unreasonable or impossible to meet.
- 2 Whether there were compelling reasons to deny the applicant bail.
Ratio Decidendi
The court found that the bail condition imposed by the trial court, requiring the Ugandan High Commission not to issue a passport to the applicant, was unreasonable and impossible to comply with. There was no evidence presented that the applicant was a flight risk or would interfere with the trial. The court held that bail is a constitutional right and should not be denied through the imposition of unattainable conditions. Therefore, the impugned condition was set aside and replaced with standard bond terms.
Court Disposition
Application allowed. Impugned bail condition set aside and substituted with standard bond terms.
Orders
- The order directed at the Ugandan High Commission not to issue the applicant with a passport is set aside.
- The applicant shall be released upon execution of a bond of Kshs. 50,000 with one surety of a similar amount, surety to be Kenyan and assessed by the trial court.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL DIVISION
MISC. CR. APPLICATION NO. 265 OF 2017
RAJAB GAHWERRA....................APPLICANT
VERSUS
REPUBLIC.................................RESPONDENT
RULING
Bail/bond is a constitutional right of an accused. It should be granted unless there are compelling reasons not to. Once a court grants bail, it should not place conditions that are unreasonable or that an accused person cannot meet. Otherwise, it adds to one and the same thing; not granting bail.
The condition that was set by the trial court that the Ugandan High Commission should not issue a passport to the Applicant was not only unreasonable but impossible to meet. No reason was advanced that the Applicant was a flight risk or was likely to interfere with the trial. As such plain and clear terms of bond would have sufficed.
Accordingly, I set aside the order of the learned trial magistrate directed at the Ugandan High Commission not to issue the Applicant with a passport. I substitute it with an order that the Applicant shall be released only upon execution of a bond of Kshs. 50,000/= with one surety of a similar amount. The surety shall be assessed by the trial court. Surety should be Kenyan. He may, in the alternative pay a cash bail of Kshs. 50,000/=.
Dated and Delivered at Nairobi this 18th day of October, 2017
G.W. NGENYE-MACHARIA
JUDGE