[2018] KEHC 3129 (KLR)
The court held that the applicant is entitled to bail as a constitutional right unless compelling reasons are shown. In this case, the State did not present any compelling reasons to deny bail. Although the complainant and victims expressed fear that the applicant might harm them if released, these concerns were not...
Source-derived case information.
- Citation
- [2018] KEHC 3129 (KLR)
- Parties
- Applicant: Abdlrahman Mohamed Bwanaheri; Respondent: Director of Public Prosecutions (DPP)
- Court
- High Court
- Court Station
- High Court at Garsen
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 14 of 2018
- Procedural Posture
- Criminal Miscellaneous Application / Ruling on Bail/bond Pending Trial
- Outcome
- application allowed; bail granted with conditions
- Judges
- CC Kipkorir
- Legal Topics
- Bail Pending Trial, Robbery With Violence, Constitutional Rights, Compelling Reasons for Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdlrahman Mohamed Bwanaheri
Applicant
Director of Public Prosecutions (DPP)
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling on Bail/bond Pending Trial
Legal Issues
- 1 Whether the applicant is entitled to bail/bond pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the applicant bail/bond.
- 3 What conditions, if any, should be attached to the grant of bail/bond.
Ratio Decidendi
The court held that the applicant is entitled to bail as a constitutional right unless compelling reasons are shown. In this case, the State did not present any compelling reasons to deny bail. Although the complainant and victims expressed fear that the applicant might harm them if released, these concerns were not substantiated by the State as compelling reasons. The court therefore granted bail but imposed strict conditions to address the victims' fears, including non-interference with witnesses and a substantial cash bail with surety. The court emphasized that breach of these conditions would result in automatic cancellation of bail.
Court Disposition
application allowed; bail granted with conditions
Orders
- The accused is granted cash bail of Kshs. 300,000 with one surety of similar amount.
- The accused shall not, either by himself or through proxy, interfere with or intimidate prosecution witnesses or their families. Breach of this condition shall lead to automatic cancellation of the bail.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARSEN
CRIMINAL MISC. CASE NO 14 OF 2018
REPUBLIC............................................................................DPP
VERSUS
ABDLRAHMAN MOHAMED BWANAHERI......ACCUSED
RULING
1. The application before me dated 2/5/2018 seeks orders that applicant be granted bail/bond pending the hearing and determination of criminal case no 81/2018, at the Principal Magistrate’s Court Lamu. It is brought on the grounds; inter aliaof bond was a total contravention of the applicants constitutional rights. That the applicant was aged 62 years and was trial and old.
2. The applicant is charged with the offence of robbery with violence under section 296 (2) of the Penal Code. The particulars of the offence are that on 12th March 2018 at around 0930 hours at Anisa Mosque are of Lamu West Sub – County within Lamu County while armed with a dangerous weapon namely a panga, he robbed Mwanaisha Bakuri Saburi an m-pesa attendant of her purse containing cash 60,000/= and assorted golden ornaments worth Kshs 63,000/= all valued at Kshs 123,000/= and during the time of such robbery used actual violence on the said Mwanaisha Bakiauri Saburi.
3. In the ongoing trial the trial court denied him his claim bail/bond.
4. His present application is supported by the affidavit sworn by his counsel Samson Gekanana. He deposes inter alia that the applicant is a well-known muslim preacher/teacher in Lamu aged 62 years and that he was a family man and incapable of harming the complainant.
5. At the hearing of the application on 11/7/2018 Mr. Gekanana submitted that the only reason that the trial court had denied the applicant bond was because the complainants stated they feared that the applicant would harm them if released.
6. Mr. Kasyoka counsel for the Respondent submitted that the State was not opposed to the application for bail. He however asked that the bail terms be sufficient.
7. I have considered the application in its entirety. I observe that the application is unopposed. I observe further that the complainant and victims of the alleged offence had raised fears in the trial court that the applicant was likely to harm them.
8. It is the constitutional right of the accused applicant to be released on bail pending trial except where there are compelling reasons. Such compelling reasons must be brought to the attention of the court by the State. No compelling reason has been stated in the present application. However as stated above. I am cognizant that the victims of the offence had voiced their fears before the trial court. I will address this in the conditions.
9. In the end I allow the application in the following terms:-
(i) The accused is granted cash bail of Kshs. 300,000/= with one surety of similar amount.
(ii) The accused shall not, either by himself or through proxy, interfere with or intimidate prosecution witnesses, or their families. A breach of this condition shall lead to automatic cancellation of the bail.
(iii) The accused shall attend his trial and avail himself to the court whenever required.
Orders accordingly.
Ruling dated, signed and delivered at Garsen this 17th day of October, 2018.
………………………..
R. LAGAT KORIR
JUDGE
In the presence of
Sharon CA
Mr. Gekanana for applicant
Mr. Kasyoka for respondent