[2015] KEHC 4194 (KLR)
The court found that although the accused persons have a constitutional right to apply for bond, this right is not absolute and may be limited where there are compelling reasons. The court considered the affidavit evidence and the pre-bail assessment report, both of which indicated fears for the safety of the...
Source-derived case information.
- Citation
- [2015] KEHC 4194 (KLR)
- Parties
- Respondent: Republic; Applicant: Abel Moseti Mogaka; Applicant: Peter Nyagaka Mogaka; Applicant: Elijah Momanyi Omwenga
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 99 of 2013
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- application for bond dismissed
- Legal Topics
- Bail and Bond, Compelling Reasons, Murder Charge, Pre Bail Assessment, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Abel Moseti Mogaka
Applicant
Peter Nyagaka Mogaka
Applicant
Elijah Momanyi Omwenga
Applicant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused persons are entitled to be released on bond pending trial for murder.
- 2 Whether there are compelling reasons to deny the accused persons bond as provided under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that although the accused persons have a constitutional right to apply for bond, this right is not absolute and may be limited where there are compelling reasons. The court considered the affidavit evidence and the pre-bail assessment report, both of which indicated fears for the safety of the victim's family due to alleged past threats by the accused. Given the relationship between the accused and the deceased, and the concerns raised, the court determined that releasing the accused on bond would not be in the interest of the victim's family. Therefore, the application for bond was denied, but the accused were granted liberty to renew the application in the future.
Court Disposition
application for bond dismissed
Orders
- The application for bond by the three accused persons is denied.
- The accused persons may renew the application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 99 OF 2013
REPUBLIC…..……………………….............PROSECUTOR
VERSUS
ABEL MOSET MOGAKA………..………….1ST APPLICANT
PETER NYAGAKA MOGAKA………...........2ND APPLICANT
ELIJAH MOMANYI OMWEGA……..............3RD APPLICANT
RULING
This is an application for bond by the three accused persons, namely; 1, Abel Moseti Mogaka, 2, Peter Nyagaka Mogaka and 3, Elijah Momanyi Omwenga. The three persons were charged for Murder, contrary to Section 203 as read with 204 of the Penal Code. The particulars thereof are that on the 8th day of September, 2013 at Birongo market in Kisii Central district within Kisii county jointly murdered JOSEPH MOGAKA NYAMWANDA. They denied the charge and the court entered the plea of NOT GUILTY. Pending the trial and determination of their case, the accused persons have applied to be released on bond.
They are aware that it is their constitutional right to apply for bond. The constitution so states, in article 49(1)(h) thereof. However, in another provision, it circumscribes that right if there are compelling reasons to curtain these rights. In the words, the right to bond/bail is not absolute.
In an affidavit sworn on the 7th October, 2013 by the deponent, the said deponent, says, in para 4 of the affidavit, fears for (her safety, the accused persons have severally in the past threatened the deceased and the deponent which threat was reported to the chief of Birongo Location, Birongo Police post and Birongo Community policing. The deceased who they alleged murdered was the father of the two accused persons and the uncle to the third of the three accused persons. In that affidavit, the deponent urges the court to deny bail so that the case may be heard and determined on merit.
The court has to balance between the rights of the accused persons and the rights of the victim family. There is sufficient cause to believe that the release of these accused persons will not be in the interest of the victim family.
The pre-bail assessment report filed in court on 15th July, 2014, buttresses the deponent’s fears for the victim’s family, and such, does not assist their cause for the release on bond.
Accordingly, the court in exercise of its discretion, denies the application for bond by the three accused person, for reasons so stated above. Thus the application is dismissed. They may renew the application.
It is so ordered.
Dated and delivered at KISII this12th day of June 2015.
HON. C.B. NAGILLAH,
JUDGE
In the presence of:-
Applicants in persons.
Mbelete for the state
Samuel Omuga - Court Clerk.