[2016] KEHC 7098 (KLR)
The court found that bond is a constitutional right under Article 49(i)(h) of the Constitution of Kenya. Since the State failed to provide any compelling reasons to deny bond and the pre-bail assessment report did not reveal any factors justifying denial, the court determined that the accused should be released on...
Source-derived case information.
- Citation
- [2016] KEHC 7098 (KLR)
- Parties
- Accused: Albert Ondieki Mosioma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 47 of 2015
- Procedural Posture
- Criminal Trial / Ruling on Bond Application Pending Murder Trial
- Outcome
- Accused granted bond pending trial.
- Judges
- CB Nagillah
- Legal Topics
- Bail and Bond, Murder Charge, Pre Bail Assessment, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Ondieki Mosioma
Accused
Republic
Respondent
Procedural Posture
Criminal Trial / Ruling on Bond Application Pending Murder Trial
Legal Issues
- 1 Whether the accused is entitled to bond pending trial for murder.
- 2 Whether there are compelling reasons to deny the accused bond as required by Article 49(i)(h) of the Constitution.
Ratio Decidendi
The court found that bond is a constitutional right under Article 49(i)(h) of the Constitution of Kenya. Since the State failed to provide any compelling reasons to deny bond and the pre-bail assessment report did not reveal any factors justifying denial, the court determined that the accused should be released on bond. The willingness of the accused's relatives to stand surety and the absence of opposition from both the accused's and victim's families further supported the decision. The court therefore ordered the accused's release on personal bond with surety and set conditions for attendance and compliance.
Court Disposition
Accused granted bond pending trial.
Orders
- The accused is released on personal bond of Kshs.500,000 with one surety of similar amount.
- The accused shall attend court mentions every month until the hearing and determination of the case or court order.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
HCCR NO.47 OF 2015
REPUBLIC…………...………………………………………….STATE
-VERSUS-
ALBERT ONDIEKI MOSIOMA…………………………….ACCUSED
R U L I N G
On 6th October, 2015 the accused person, Albert Ondieki Mosioma, through his Counsel, Nyamwange, then holding brief for Bigogo, applied for bond, to be released pending the hearing and determination of his murder trial.
Earlier, he was charged for murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars thereof were that on the 2nd day of March, 2014 at Matangi, village in Masaba North District within Nyamira County within the Republic of Kenya, he murdered CYPRIAN MISOI NYARECHI.
He pleaded not guilty to the charge.
The State, Mr. Malesi asked for time to respond to the said bond application on 11th November, 2015, then court called for the pre-bail assessment report. To-date the State has not responded to the bond application.
However, on 11th December, 2015 the pre-bail assessment report was filed in court.
Bond/Bail is a constitutional right accorded by the constitution. Article 49(i) (h) says; “An arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released”.
Since the State has not filed its response to state the compelling reasons, the court is compelled to be guided in the meantime, by the pre-bail assessment report.
The accused is aged 23 years he is married and is a peasant farmer. Both his family and the victim’s family are not averse to his being released on bond. His maternal relatives have expressed willingness to procure a surety for the accused person.
And since there are no compelling reasons raised by the all those interviewed that can form a basis to deny the suspect bond terms, this court, will therefore order that the accused be released on personal bond of Kshs.500,000 with one surety of similar amount on the following conditions:
(a) He attends court mentions every month until the hearing and determination of this case or court order.
(b) Any one default, the bond to be cancelled forthwith and the surety be made to answer.
(c) The first such mention to be on 18th February, 2016.
It is so ordered.
Dated this 18th day of January 2016.
C.B. NAGILLAH
JUDGE
In the presence of:
Nyamwange for accused person
Malesi for the State
Mercy Court Clerk