[2015] KEHC 5922 (KLR)
The court found that the prosecution did not oppose the bail application and did not advance any compelling reasons to deny bail. The Constitution provides a right to bail unless compelling reasons are shown. In the absence of such reasons, and considering the criteria established by the courts, the judge exercised...
Source-derived case information.
- Citation
- [2015] KEHC 5922 (KLR)
- Parties
- Respondent: Republic; Applicant: Benard Lemara
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- Bail granted to the accused on specified terms.
- Judges
- JK Mulwa
- Legal Topics
- Bail Application, Murder Charge, Compelling Reasons, Constitutional Rights, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Benard Lemara
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the accused is entitled to bail pending trial for a charge of murder.
- 2 Whether there are compelling reasons to deny bail to the accused under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that the prosecution did not oppose the bail application and did not advance any compelling reasons to deny bail. The Constitution provides a right to bail unless compelling reasons are shown. In the absence of such reasons, and considering the criteria established by the courts, the judge exercised discretion in favour of the accused and granted bail on specified terms, including a personal bond and surety, non-interference with witnesses, and regular court attendance.
Court Disposition
Bail granted to the accused on specified terms.
Orders
- The accused shall sign a personal bond of Kshs 350,000 with one surety of similar amount.
- The accused shall not interfere with witnesses.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL CASE NO. 7 OF 2015
REPUBLIC................................................................................PROSECUTOR
VERSUS
BENARD LEMARA...........................................................................ACCUSED
RULING
1. The accused Benard Lemara is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. He is alleged to have murdered Naomi Cherutich on the 12th November 2014 at Mauche Trading Centre in Njoro subcounty within Nakuru County. He pleaded guilty and was remanded at the Nakuru G. K. Prison pending the hearing and determination of the case.
2. On the 18th February 2015, the accused's advocate Mr. Mugambi applied that the accused be released on bail/bond. The State sought time to respond to the application. On the 18th March 2015, the State indicated that it does not oppose the application to have the accused released on terms as the court may deem fit and just.
3. Article 49(1)(h) of the Constitution gives an arrested party a 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.
4. Further Article 49(2) of the Constitution gives the court discretion to grant bail in all cases where the accused is charged with an offence punishable by fine alone or imprisonment for a period not exceeding six months.
5. In this case, the accused, if convicted shall be sentenced to the only sentence provided that is, death.
The right to bail under the Constitution is not absolute. It may be denied where there are compelling reasons, that are not provided for any where in our statutes.The courts have however promulgated criteria in various decisions.Among them are whether the accused is likely to abscond from the courts jurisdiction and whether or not he may interfere with witness.
6. As pointed out earlier, the prosecution does not oppose the application, and by implication, there are no compelling reasons to deny bail to the accused, as none have been advanced.
In the circumstances, this court shall exercise its discretion in the accused's favour and release him on bail, but upon the following terms, that he shall sign a personal bond of Kshs 350,000/= with one surety of similar amount, that he will not interfere with witnesses and that he shall attend court whenever required to do so. He will also attend court for mention of the case once every month until further orders of this court, and/or pending the hearing and determination of the case.
Mention on 22nd April 2015.
Dated, signed and delivered at Nakuru this 27th day of March 2015
JANET MULWA
JUDGE
In the presence of:
Rugutfor the State
Morintant holding brief Mugambi for accused
Omondi - Court clerk