[2023] KEHC 25999 (KLR)
The court held that while bail is a constitutional right, it is not absolute and must be balanced against the seriousness of the offence and the risk of absconding. The court found that the bond of Kes 500,000 with surety was not unreasonable given the charge of murder and the prevailing circumstances. The...
Source-derived case information.
- Citation
- [2023] KEHC 25999 (KLR)
- Parties
- Applicant: Republic; Defendant: Abdirizak Abdow Mohamed Issack Ali (alias Minai); Defendant: Mahat Ibrahim Tache; Defendant: Mohamed Issack Ali (alias Kadir); Defendant: Abdullahi Bulle Abdow; Defendant: Adan Mursal Hassan (alias Geney)
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E002 of 2023
- Procedural Posture
- Criminal Case / Ruling on Application for Review of Bail Terms
- Outcome
- application for review of bail terms dismissed
- Judges
- JN Onyiego
- Legal Topics
- Bail Terms, Murder Charge, Judicial Discretion, Constitutional Rights, Absconding Risk
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Abdirizak Abdow Mohamed Issack Ali (alias Minai)
Defendant
Mahat Ibrahim Tache
Defendant
Mohamed Issack Ali (alias Kadir)
Defendant
Abdullahi Bulle Abdow
Defendant
Adan Mursal Hassan (alias Geney)
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Review of Bail Terms
Legal Issues
- 1 Whether the bail terms for the 3rd and 4th accused persons should be reviewed downwards to a cash bail of Kes 300,000.
- 2 Whether the current bond terms of Kes 500,000 with surety are unreasonable given the circumstances of the accused.
Ratio Decidendi
The court held that while bail is a constitutional right, it is not absolute and must be balanced against the seriousness of the offence and the risk of absconding. The court found that the bond of Kes 500,000 with surety was not unreasonable given the charge of murder and the prevailing circumstances. The application for further review to cash bail was therefore not merited and was disallowed. The court emphasized its discretion in setting bail terms and the need to consider both the rights of the accused and the interests of justice, particularly in serious criminal matters where the risk of absconding is heightened by lenient cash bail terms.
Court Disposition
application for review of bail terms dismissed
Orders
- Application for review of bail terms to Kes 300,000 cash bail is disallowed.
- Bond terms of Kes 500,000 with one surety of similar amount remain in force.
Full Case Text
Judgment text and source record
28 paragraphs
Republic v Ali & 4 others (Criminal Case E002 of 2023) [2023] KEHC 25999 (KLR) (10 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25999 (KLR)
Republic of Kenya
In the High Court at Garissa
Criminal Case E002 of 2023
JN Onyiego, J
November 10, 2023
Between
Republic
Prosecutor
and
Abdirizak Abdow Mohamed Issack Ali (alias Minai)
1st Accused
Mahat Ibrahim Tache
2nd Accused
Mohamed Issack Ali (alias Kadir)
3rd Accused
Abdullahi Bulle Abdow
4th Accused
Adan Mursal Hassan (alias Geney)
5th Accused
Ruling
1. The 1st to 4th accused persons were jointly arraigned in court on 10th July 2023 charged with murder contrary to Section 203 as read with Section 204 of the penal code. Particulars are that on 5th day of January 2023 with others not before the court at Mandera Township within Mandera County unlawfully murdered Farah Ibrahim Salat. Subsequently, accused five who had allegedly fled the jurisdiction of this court for Somalia was arrested and presented before Mandera high court vide Cr.case No. E002 of 2023. Consequently, Mandera file was transferred to Garissa and consolidated with Cr. Case No. E002 of 2023.
2. Accused one to four were released on a bond of Kes one million with one surety of similar amount upon denying the charge. The same was later reviewed downwards to Kes five hundred thousand with one surety of similar. Meanwhile, accused one and two were released on the first bail terms. Subsequently, Mr. Ondieki applied for further review of bail terms for the 3rd and 4th accused persons to Kes 300,000 cash bail. Learned counsel argued that the accused were unable to raise surety owing to the prolonged drought in the region and that they were ready to deposit cash bail.
3. Mr. Kihara for the state opposed the application on grounds that the court had given extremely lenient bail terms and that the offence was serious.
4. I have considered the application herein and the response thereof. The accused persons are seeking lenient bail terms in the nature of Cash bail. It is clear that the accused have been granted bail which has been reviewed previously. Whereas, bail is a constitutional right, the same is not absolute. The trial court has the discretion to determine appropriate bail terms bearing in mind the interest of the victim. I must also state that there is a serious trend of accused persons absconding after being released on very lenient cash bail terms.
5. Taking into account the seriousness of the offence, I do not find a bond of Kes 500,000 unreasonable. In the circumstances, it is my holding that the application is not merited and the same is disallowed.
DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 10TH NOVEMBER 2023J.N. ONYIEGOJUDGE