[2016] KEHC 5095 (KLR)
The court found that maintaining the passport deposit condition was unfair and unattainable, as the accused could not access her passport despite efforts by both herself and the investigating officer. Insisting on this condition would effectively deny bail already granted. The court therefore removed the passport...
Source-derived case information.
- Citation
- [2016] KEHC 5095 (KLR)
- Parties
- Respondent: Republic; Applicant: Antoinette Uwineza alias Michelin Uwababyyi; Applicant: Alexander Kiole Mutie; Applicant: Kassim Oyamo Odiwuor alias Odi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 45 of 2013
- Procedural Posture
- Criminal Case / Ruling on Application to Review Bail Terms
- Outcome
- Application to review bail terms allowed in part; passport deposit condition removed; bail terms enhanced.
- Legal Topics
- Bail Conditions, Passport Deposit, Surety Requirements, Foreign Nationals in Criminal Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Respondent
Antoinette Uwineza alias Michelin Uwababyyi
Applicant
Alexander Kiole Mutie
Applicant
Kassim Oyamo Odiwuor alias Odi
Applicant
Procedural Posture
Criminal Case / Ruling on Application to Review Bail Terms
Legal Issues
- 1 Whether the condition requiring the accused to deposit her passport with the court should be removed due to her inability to access it.
- 2 Whether the bail terms should be enhanced to ensure the accused attends trial as a foreign national.
Ratio Decidendi
The court found that maintaining the passport deposit condition was unfair and unattainable, as the accused could not access her passport despite efforts by both herself and the investigating officer. Insisting on this condition would effectively deny bail already granted. The court therefore removed the passport deposit requirement but enhanced the bail terms by increasing the cash bail and the number and value of sureties. Additional conditions were imposed to ensure the accused remains within the jurisdiction and attends trial, including providing a physical address and barring her from leaving Kenya until the trial concludes. The court balanced the accused's right to bail with the...
Court Disposition
Application to review bail terms allowed in part; passport deposit condition removed; bail terms enhanced.
Orders
- The condition requiring the accused to deposit her passport with the court is removed.
- The cash bail is enhanced from Kshs.800,000 to Kshs.1,000,000.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 45 OF 2013
REPUBLIC……………………..…………………..................PROSECUTOR
VERSUS
ANTOINETTE UWINEZA ALIAS
MICHELIN UWABABYYI ……….....……………1ST ACCUSED/APPLICANT
ALEXANDER KIOLE MUTIE……........…………2ND ACCUSED/APPLICANT
KASSIM OYAMO ODIWUOR
alias ODI……………………………...….……...3RD ACCUSED/APPLICANT
RULING
The three accused in this case were granted bail by this court vide a ruling dated 4th March 2014. Following the ruling the 1st and 2nd accused met the conditions attached and were released from custody. The 3rd accused has however not been released to date for failure to meet the condition that she deposits her passport with the court.
On 12th November 2015 Counsel for the 3rd accused made an application seeking a review of the bail terms. He asked the court to remove the condition that the accused deposits her passport with the court. He explained that the accused has been unable to access her passport because the one she had expired while the renewed one was sent back to her country Rwanda while she was in custody. This Ruling is in respect of this application.
Following the application, Mr. Okeyo for the prosecution sought time to take instructions. The same was granted by the court. Mr. Okeyo subsequently responded to the application on 30th Novmber 2015. He submitted that the State was not opposed to the condition respecting the passport being dropped as it was aware of the difficulties faced by the accused in accessing the said passport. He, however asked the court to enhance the cash bail and increase the sureties. He also sought an order that bars the accused from leaving the jurisdiction of the court.
I have considered the application. The primary purpose of bail is to ensure that the accused attends trial. In this case, the court imposed a condition that the accused deposits her passport with the court to ensure that she does not leave the jurisdiction of the court and thereby abscond trial. The record however shows that the accused has had difficulty accessing the passport. Even the investigating officer in the case armed with an order of this court issued on various dates has not been able to access the said passport either at the Foreign Affairs Ministry or at the Rwandan Embassy.
Following the above, I am persuaded that it would not be fair to maintain a condition that is prima facie unattainable. To do so would amount to denial of bail which the court has already granted. I will therefore remove the condition on the passport but enhance the sureties to ensure that the accused who is a foreign national remains within the jurisdiction of this court and attends trial.
In the premises I order that the 1st accused:-
Enhances the cash bail from Kshs.800,000 (already paid into court) by Kshs.200,000 to Kshs.1,000,000.
Provide 3 Kenyan sureties of Kshs.1,000,000 each.
Provides full physical address of her intended residence in Kenya upon released, and inform the court whenever she changes such address.
Shall attend court whenever required and shall not leave the jurisdiction of the court until the case is concluded.
In addition to the above conditions, I hereby issue an order directed at the Principal Secretary responsible for Immigration that the accused Antoinette Uwineza alias Michelin Uwababyyi, a Rwandan National, and 1st acused in this case, be barred from leaving Kenya until her on going trial is concluded. This order be circulated to all exit points. It is to be executed through the investigating officer in the case.
Orders accordingly.
Ruling deliveredandsignedat Nairobi this 16thday of February, 2016
R.LAGAT-KORIR
JUDGE
In the presence of:
….........................................: Court clerk
…………………………………..: Accused
…………………………………..: Counsel for Accused
...........................................: Counsel for the State