[2011] KEHC 3696 (KLR)
The court found that although the Constitution grants a right to bail, this right is not absolute and must be balanced against the interests of justice and public safety. The pre-bail report indicated that the accused was charged with killing his own brother, had a history of criminal activities, lacked family...
Source-derived case information.
- Citation
- [2011] KEHC 3696 (KLR)
- Parties
- Respondent: Republic; Applicant: Benard Mati Kathamba
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 47 of 2008
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- bail application dismissed
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Trial, Right to Bail, Murder Charge, Pre Bail Report, Public Security, Family Relations
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Benard Mati Kathamba
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(1)(h) of the Constitution of Kenya 2010.
- 2 Whether the circumstances of the case justify denial of bail to the accused.
Ratio Decidendi
The court found that although the Constitution grants a right to bail, this right is not absolute and must be balanced against the interests of justice and public safety. The pre-bail report indicated that the accused was charged with killing his own brother, had a history of criminal activities, lacked family support for surety, and that the local community would feel insecure if he were released. The court concluded that these factors made the accused unsuitable for release on bail, and therefore dismissed the application for bail pending trial.
Court Disposition
bail application dismissed
Orders
- The accused's application for bail pending trial is dismissed.
- The trial shall proceed from where it had stopped.
Full Case Text
Judgment text and source record
14 paragraphs
CRIMINAL
·Bail pending trial.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CR. CASE NO. 47 OF 2008
REPUBLIC ........................................................................................STATE COUNSEL
VERSUS
BENARD MATI KATHAMBA ........................................................................ACCUSED
RULING
The accused is charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code. His trial commenced on 12th October 2009. It is still on going. Following the promulgation of the new Constitution, the accused person requested that he be released on bail pending trial. Article 49 (1) (h) of the Constitution of Kenya 2010 provides that an arrested person ought to be granted bail whilst pending trial or after arrest on reasonable terms. I should however state that the right to bail is not absolute. The court should consider the surrounding circumstances of the accused before granting him bail.It is for that reason that I requested the probation officer to prepare a pre-bail report to assist the court in reaching a decision on the bail application. The probation officer did present before court a report. The report informed the court that the accused is charged with killing his own blood brother. When the public were requested to give their views on the release of the accused on bail, the public informed the probation officer that the accused person had involved himself previously in criminal activities. As a result of that, the members of public in the locality where the accused resides stated that they would feel insecure if the accused was released on bail. The members of the accused family were also unwilling to commit themselves to stand surety for the accused. With that information, and because the probation officer found that the accused did not have a harmonious relationship with his immediate members of family, I find that the accused is not a suitable person to be released on bail. His application is dismissed and I order his trial to proceed from where it had stopped.
Dated, signed and delivered at Meru this 17th day of March 2011.
MARY KASANGO
JUDGE