Republic v Benjamin Okwarigna Akol [2021] KEHC 5628 (KLR)
- Citation
- [2021] KEHC 5628 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- MM Kasango
- Case number
- Criminal Case E009 of 2021
- Language
- English
More details
- Court
- High Court
- Panel
- MM Kasango
- Case number
- Criminal Case E009 of 2021
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the mere fact of the accused being a foreign national does not, in itself, constitute a compelling reason to deny bail. The prosecution failed to provide evidence that the accused is likely to abscond or that there are other compelling reasons to justify denial of bail. The court emphasized that the constitutional right to bail applies equally to non-citizens, and the only basis for denial must be the existence of compelling reasons, which were not demonstrated in this case. Accordingly, the accused was granted bail on specified terms to ensure his attendance at trial.
Court disposition
Bail granted to the accused on specified terms.
Orders
- The accused, Benjamin Okwaringa Akol, is granted bond of Kshs. 1,000,000 with two Kenyan sureties of Kshs. 2,000,000 each.
02
Material facts
Parties
Republic
Respondent Counsel: Ms. KathambiBenjamin Okwaringa Akol
Applicant Counsel: Ms. NjagiAmounts and remedies
- Bond Amount for Accused: KES 1,000,000
- Surety Amount Per Surety: KES 2,000,000
03
Procedural history
Posture
Bail Application / Ruling on Bail Application
04
Questions and positions
Legal issues
- 01
Whether the accused, a foreign national, should be granted bail pending trial for the offence of murder.
- 02
Whether the prosecution has demonstrated compelling reasons to deny bail under Article 49(1)(h) of the Constitution.
Party arguments
- Applicant
- The applicant relies on the constitutional right to bail under Article 49(1)(h), arguing that being a foreign national is not a sufficient ground to deny bail. No compelling reasons have been advanced to show he is likely to abscond, and the applicant is willing to comply with any reasonable bail terms.
- Respondent
- The respondent raises concerns regarding the applicant's status as a foreign national, lack of family contacts in Kenya, and the inability of the probation officer to verify his background, suggesting a risk of absconding. However, no specific evidence is provided to demonstrate compelling reasons to deny bail.
05
Court’s reasoning
Legal principles
- 01
Article 49(1)(h) of the Constitution of Kenya
An arrested person has the right to be released on bond or bail on reasonable conditions pending charge or trial unless there are compelling reasons not to be released.
- 02
GRACE KANANU NAMULO VS. REPUBLIC (2018) eKLR; ERICK RAMAZANI V. REPUBLIC (2020) eKLR; REPUBLIC VS RICHARD DAVID ALDEN [2016] eKLR
The primary consideration for granting bail is whether the accused will attend trial; being a foreign national is not per se a ground to deny bail.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the mere fact of the accused being a foreign national does not, in itself, constitute a compelling reason to deny bail. The prosecution failed to provide evidence that the accused is likely to abscond or that there are other compelling reasons to justify denial of bail. The court emphasized that the constitutional right to bail applies equally to non-citizens, and the only basis for denial must be the existence of compelling reasons, which were not demonstrated in this case. Accordingly, the accused was granted bail on specified terms to ensure his attendance at trial.
Obiter and limits
- The inability of the probation officer to obtain further background details due to lack of family contacts in Uganda does not, without more, amount to a compelling reason to deny bail.
- Non-citizens are entitled to the same constitutional protections regarding bail as Kenyan citizens, subject only to proof of compelling reasons.
Court disposition
Bail granted to the accused on specified terms.
- The accused, Benjamin Okwaringa Akol, is granted bond of Kshs. 1,000,000 with two Kenyan sureties of Kshs. 2,000,000 each.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL CASE NO. E009 OF 2021
BETWEEN
REPUBLIC.........................................................................PROSECUTOR
VERSUS
BENJAMIN OKWARIGNA AKOL.........................................ACCUSED
RULING
1. BENJAMIN OKWARIGNA AKOL is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He has applied to be released on bail.
2. I have the probation pre-bail report. It reveals accused is 24 years old. He is single. He is a Uganda national. The accused failed to reveal contacts of his family in Uganda and consequently the probation officer was unable to get further details of his background.
3. Article 49(1)(h) of the Constitution provides that an arrested person has the right to be released on bond/bail on reasonable conditions pending charge or trial unless there are compelling reasons not to be released. The primary consideration for granting bail is to ensure an accused does attend his trial. In the case GRACE KANANU NAMULO VS. REPUBLIC (2018 EKLR, that consideration was discussed thus:-
“17. I associate myself with the view expressed byMuriithi, JinKELLY KASES BUNJIKA VS REPUBLIC(supra) that:-
‘It is clear that the primary consideration for bail is whether the accused will attend his trial for the charges facing him, and it must, therefore, be a compelling reason if it is demonstrated that “the accused is likely to fail to attend court proceedings”. The question in this matter becomes whether there is, on a balance of probabilities evidence that the accused is likely to abscond. The accused claims to have a good defence to the charge of escape from custody. The nature of such defence and evidence is not disclosed. The accused merely asserts his “constitutional right to be granted Bond/Bail on reasonable and favourable terms.’”
4. The fact that the accused is a foreigner is not necessarily a reason to deny the accused bail. This was so stated in the case ERICK RAMAZANI V. REPUBLIC (2020) eKLR thus:-
“InREPUBLIC VS RICHARD DAVID ALDEN [2016] eKLR,Lesiit, Jheld thus in relation to an application for bail which had been made by a foreigner:-
‘28. I agree that a paramount issue for determination, in considering an application for bail is whether the accused person will avail himself for trial if admitted to bail. I also agree that an accused not being a citizen poses a special challenge to the court, but that is not to say that non-citizens cannot enjoy the rights to be released on bail as enshrined in our Constitution.Art.49(1)(h)is not of limited application and the only condition set there under is a proof of compelling reasons to deny bail. The mere fact the accused is not a Kenyan is not per se a ground to deny bail.’”
5. Bearing the above in mind, I will grant accused bail.
DISPOSITION
6. I grant Benjamin Okwaringa Akol bond of Kshs.1milion with two Kenyan sureties of Kshs.2milion each.
RULING DATED and DELIVERED at KIAMBU this 6th day of JULY, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant: Ndege
Accused: Present
For Accused: Ms. Njagi
DPP: Ms. Kathambi
COURT
RULING delivered virtually.
MARY KASANGO
JUDGE
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