[2016] KEHC 5140 (KLR)
The court found that although there remains hostility in the community where the offence occurred, the accused's alternative home is over 20 kilometres away, as confirmed by the pre-bail report. The court reasoned that this distance sufficiently reduces the risk to the accused's safety and the likelihood of witness...
Source-derived case information.
- Citation
- [2016] KEHC 5140 (KLR)
- Parties
- Applicant: Republic; Defendant: Cosmas Kirimi; Defendant: Benjamin Kithinji; Defendant: Benard Mutura
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 63 of 2015
- Procedural Posture
- Criminal Case / Ruling on Second Bail Application
- Outcome
- Application for bail granted with conditions.
- Judges
- RPV Wendoh
- Legal Topics
- Bail Application, Pretrial Release, Community Hostility, Presumption of Innocence
- 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
Applicant
Cosmas Kirimi
Defendant
Benjamin Kithinji
Defendant
Benard Mutura
Defendant
Procedural Posture
Criminal Case / Ruling on Second Bail Application
Legal Issues
- 1 Whether the 3rd accused, Cosmas Kirimi, should be granted bail pending trial despite community hostility and security concerns.
- 2 Whether the accused's alternative residence sufficiently mitigates risks to his safety and the integrity of the trial.
Ratio Decidendi
The court found that although there remains hostility in the community where the offence occurred, the accused's alternative home is over 20 kilometres away, as confirmed by the pre-bail report. The court reasoned that this distance sufficiently reduces the risk to the accused's safety and the likelihood of witness intimidation. The presumption of innocence and the right to bail were weighed against the volatile situation, but the court determined that the accused could be released on bond with strict conditions to ensure his safety and the integrity of the trial. The accused is required to keep away from the area where the offence was committed and to report regularly to the police,...
Court Disposition
Application for bail granted with conditions.
Orders
- The accused may be released on bond of KShs.300,000 plus one surety of the same amount or cash bail of KShs.100,000.
- Accused to report to Maua Police Station every one month till further order of the court. If released, he should report to the Police Station after 7 days.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 63 OF 2015
REPUBLIC...............................................................PROSECUTOR
V E R S U S
BENJAMIN KITHINJI ......……................................ 1ST ACCUSED
BENAR5D MUTURA ............................................. 2ND ACCUSED
COSMAS KIRIMI ................................................. 3RD ACCUSED
RULING
This application dated 11/3/2016 is brought by Cosmas Kirimi, 3rd accused seeking to be released on bond. It is the second application. The first one was rejected by this court on account of hostility of the community at home and the fact that witnesses might feel intimidated by the presence of the accused. The applicant has deponed that he has another home over 20 kilometres from where the offence occurred and it is unlikely that his life will be in danger.
The Prosecution opposed the application again for reasons that there is still hostility in the community against the accused and that his alternative home is very near that of the deceased and therefore his life may be in danger.
I have considered the two affidavits as well as the pre-bail report. The report indicates that there is still a lot of hostility against accused 3 where the incident occurred and where he had bought land and built a home which was razed down after the offence was committed. It is observed however, that the accused is very loved in his original home. Contrary to what the investigation officer stated, the pre-bail report indicates that the accused’s home is over 20 kilometres from where the offence took place.
It is not uncommon that the deceased’s family will never agree to an accused being released on bond. However, an accused is presumed innocent till proved guilty. In this case, the razing down of accused’s home is indeed evidence that the community was enraged at the death. The pre-bail report still maintains that the situation is still volatile, 9 months after the occurrence. However, if the accused’s home is 20 kilometres away from the scene of crime, then it is unlikely that the accused’s life will be in danger. As much as the State is supposed to guarantee the security of its citizens yet the security machinery cannot be everywhere all the time and accused 3 has the duty of care owed to himself too. He has to take care of his personal security too.
For the above reasons, I will allow the accused’s application but he must be a person of good conduct and keep away from the area where the offence was committed pending the hearing of this case. I grant bond in the following terms:
1. The accused may be released on bond of KShs.300,000/= plus one surety of the same amount or cash bail of KShs.100,000/=.
2. Accused to report to Maua Police Station every one month till further order of the court. If released, he should report to the Police Station after 7 days.
It is so ordered.
DATED, SIGNED AND DELIVERED THIS 19TH DAY OF MAY, 2016.
R.P.V. WENDOH
JUDGE
19/5/2016
PRESENT
Mr. Mulochi for State
Mr. Igweta Holding Brief for Mr. Ntarangwi for Accused
Ibrahim/Peninah, Court Assistants
Present, Accused