[2020] KEHC 4573 (KLR)
The court held that although bail is a constitutional right under Article 49(1)(h) of the Constitution of Kenya 2010, it may be denied if there are compelling reasons. In this case, the pre-bail reports and affidavits indicated that the accused persons' lives would be at risk if released on bail due to hostility...
Source-derived case information.
- Citation
- [2020] KEHC 4573 (KLR)
- Parties
- Applicant: Republic; Defendant: Ambrose Kiprotich Chepkwony; Defendant: Peter Kipkorir Bii
- Court
- High Court
- Court Station
- High Court at Bomet
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 2 of 2019
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- bail application declined
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Constitutional Rights, Pre Bail Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Ambrose Kiprotich Chepkwony
Defendant
Peter Kipkorir Bii
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused persons should be released on bail pending trial.
- 2 Whether there are compelling reasons to deny bail under Article 49(1)(h) of the Constitution.
- 3 Whether the safety of the accused persons is at risk if released on bail.
Ratio Decidendi
The court held that although bail is a constitutional right under Article 49(1)(h) of the Constitution of Kenya 2010, it may be denied if there are compelling reasons. In this case, the pre-bail reports and affidavits indicated that the accused persons' lives would be at risk if released on bail due to hostility from the deceased's family and the community. The court found that, in the absence of evidence of a changed situation, releasing the accused would endanger their safety. Therefore, the application for bail was declined, but the court left open the possibility for a future application should circumstances change.
Court Disposition
bail application declined
Orders
- The application for release on bail by the accused persons is declined.
- The accused persons may renew their application for bail if the situation on the ground changes.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BOMET
CRIMINAL CASE NO.2 OF 2019
REPUBLIC..............................................................................PROSECUTOR
VERSUS
AMBROSE KIPROTICH CHEPKWONY............................1ST ACCUSED
PETER KIPKORIR BII........................................................2ND ACCUSED
RULING
1. This is a part heard case which was mentioned at Bomet High Court on 3rd December 2019 for the State to apply for consolidation with Criminal Case no.22 of 2019. The issue of consolidation does not appear to have been dealt with yet. However, on the mention date above, counsel for the two accused, Mr. Koske asked that his clients be released on bail.
2. Mr. Muriithi for the State said that he did not have his file and opposed release on bail and relied on an affidavit sworn by the mother of the deceased Winny Chelule on 2nd December 2019 which opposed bail. I also note that the same, Winny Chelule had previously filed an affidavit in this same case in opposition to release of the two accused persons on bail dated 6th March 2019.
3. I also note that the Probation Officer, Ezekiel Lagat filed pre-bail reports on each of the two accused persons dated 26th March 2019 in which it was indicated that the deceased’s family and community environment was hostile. I note that though the case was mentioned on 3rd December 2019 also to confirm the filing of a fresh pre-bail reports, such reports were not filed.
4. Under Article 49 (i) (h) of the Constitution of Kenya 2010, bail pending trial is a constitutional right and can only be denied very limited reasons. The Article provides as follows-
“49 (1) An arrested person has the right-
(h) to be released on bond or bail, on reasonable conditions, pending charge or trial, unless there are compelling reasons not to be released.”
5. The prosecution or State has the primary obligation to demonstrate to the court the compelling reasons for denial of bail. However, even in the absence of such demonstration by the State, this court as a court of justice cannot be blind to the reality on the ground especially the wellbeing and safety of the accused persons.
6. In the present case, the information on record especially from the Probation Officer is that the lives of the two accused persons herein might be at risk if released on bail. Unless therefore, I am assured of a changed situation, this court cannot exercise its constitutional powers to release the accused on bail, because that action might endanger their lives.
7. I thus decline to release the two accused persons herein on bail presently. However, the request for release on bail of the two accused persons can be raised in court at any time hereafter, if the situation on the ground has changed.
Dated and delivered at Bomet this 2nd March 2020.
George Dulu
JUDGE