[2020] KEHC 1753 (KLR)
The court held that the seriousness of the offence of murder and the potential sentence upon conviction are legitimate factors in setting bail terms. While the presumption of innocence must be maintained, the risk of flight in capital offences is real and cannot be ignored. The court found no sufficient basis to...
Source-derived case information.
- Citation
- [2020] KEHC 1753 (KLR)
- Parties
- Respondent: Republic; Applicant: Antony Barasa Wafula
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 17 of 2017
- Procedural Posture
- Criminal Case / Ruling on Application to Review Bail Terms
- Outcome
- application for review of bail terms declined
- Judges
- MM Kasango
- Legal Topics
- Bail Review, Murder Charge, Presumption of Innocence, Judicial Discretion
- 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
Antony Barasa Wafula
Applicant
Procedural Posture
Criminal Case / Ruling on Application to Review Bail Terms
Legal Issues
- 1 Whether the bail terms previously set for the accused should be reviewed and reduced to a lower cash bail amount.
- 2 Whether the seriousness of the offence justifies the existing bail terms.
Ratio Decidendi
The court held that the seriousness of the offence of murder and the potential sentence upon conviction are legitimate factors in setting bail terms. While the presumption of innocence must be maintained, the risk of flight in capital offences is real and cannot be ignored. The court found no sufficient basis to disturb the bail terms previously set, as they were already commensurate with the gravity of the charge. The application for review was therefore declined.
Court Disposition
application for review of bail terms declined
Orders
- The application to review bail terms is declined.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL CASE NO 17 OF 2017
REPUBLIC..................................................... PROSECUTOR
VERSUS
ANTONY BARASA WAFULA................................ACCUSED
R U L I N G
1. The Accused Antony Barasa Wafula is charged, in this case, with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. That offence occurred on 22nd February 2017. The Accused’s trial commenced on 20th July 2017. Prior to that date the Accused’s application for bail was held in abeyance until the prosecution’s vulnerable witness testified.
On 18th September 2017 the court admitted the Accused on bail on the following terms:
(a) Personal recognizance in the sum of KSh.500,000 and one surety of similar sum.
(b) Accused to report to the Deputy Registrar every last Thursday of every month.
2. It now does seem the Accused was unable to meet the terms of his release on bail because on 9th November 2020, after he made the election that the trial should proceed before me from where it stopped before Justice Meoli, the accused requested that his bail terms be reviewed by being reduced to cash bail of KSh.100,00. The state opposed that review on the basis that the terms of bail, as they are, are commensurate to the charge of murder.
3. Undoubtedly the seriousness of the offence ought to be a consideration when the court is considering a bail application, or as in this case where the court is considering revision of bail terms. This indeed was what was stated by Justice C. Meoli in the case
Maurice Amugumbi Jumba v Republic [2019] eKLRthus:
“Hence the caution in Watoro v Republic (1991) KLR 220 as cited by Achode J.in George Kamau’scase: -
“The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion.... What I think is important for the court to bear in mind, and reason for the caution to remember the presumption of innocence, is that, it would be wrong to leap to the conclusion that the accused was guilty because has(SIC)been charged and decide the bail application on that basis.”
4. In that case the court further stated:
“There must be a balance between the presumption of innocence and the nature of the offence, as observed by Ibrahim J (as he then was) in Philip Anyanya v R (2010) eKLR
“Whatever the court will decide, the fear and anxiety exerting on an accused’s mind during the trial in a murder case cannot be ignored. The possibility of thinking of flight by an accused person facing a capital offence is real and cannot be wished away. It is therefore true that the seriousness of an offence and the sentence for which is possible upon conviction is a matter which can bear on the accused and can affect his decision to attend trial or not.”
5. It is with the above sentiments in mind that I agree with the submission made by the state that the bail terms granted to the Accused on 18th September 2017 are commensurate to the charge he faces. There is no basis in my view for reviewing those terms.
For the above reasons the application to review bail terms is declined.
SIGNED AND DELIVERED VIRTUALLY THIS 17TH DAY OF NOVEMBER 2020.
MARY KASANGO
JUDGE
17th November 2020
Before Justice Mary Kasango
C/A - Kevin
Accused: ANTONY BARASA WAFULA - Present
For Accused - No appearance
For the State - Ms Kathambi
COURT
Ruling virtually delivered in their presence.
MARY KASANGO
JUDGE