[2022] KEHC 2418 (KLR)
The court found that the accused's nationality is unclear, with indications that he may be a Ugandan national, and that he lacks a known permanent place of abode or reliable community ties. The pre-bail probation report concluded that he is a flight risk and that his safety and wellbeing would be compromised if...
Source-derived case information.
- Citation
- [2022] KEHC 2418 (KLR)
- Parties
- Respondent: Republic; Applicant: Benson Omamo Musimbi
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E039 of 2021
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- Bail application declined; accused to remain in custody pending trial.
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Flight Risk, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Benson Omamo Musimbi
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny bail, specifically risk of flight and unclear nationality.
Ratio Decidendi
The court found that the accused's nationality is unclear, with indications that he may be a Ugandan national, and that he lacks a known permanent place of abode or reliable community ties. The pre-bail probation report concluded that he is a flight risk and that his safety and wellbeing would be compromised if released. The court rejected the applicant's advocate's assertions of strong community and family ties due to lack of substantiation. Given the seriousness of the murder charge and the risk of flight, the court held that there are compelling reasons to deny bail under Article 49(1)(h) of the Constitution. The application for bail was therefore declined.
Court Disposition
Bail application declined; accused to remain in custody pending trial.
Orders
- The application for bail by Benson Omamo Musimbi is declined.
- The accused shall remain in custody pending trial.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL CASE NO. E039 OF 2021
REPUBLIC..........................................................................................PROSECUTOR
VERSUS
BENSON OMAMO MUSIMBI..................................................................ACCUSED
RULING
1. BENSON OMAMO MUSIMBI is charged with offence of murder. He pleaded not guilty and his trial is yet to commence. He has applied to be released on bail pending his trial.
2. The pre-bail probation report presented to the court concluded as follows:-
“CONCLUSION
Your honour before court is a 24 year old man married with one child whose nationality is shrouded in mystery and depends on casual jobs for living his mother is deceased and father resides in Uganda and cannot be traces. The wife’s understanding of his background information is scanty and cannot be relied upon.
He is a flight risk since his permanent place of above is not known. Due to the magnitude of the case, his safety and wellbeing would be highly compromised if released.”
3. The accused, as the afore stated report revealed, is not known by the local administration and the community of the area where he worked before his arrest. The community believes the accused is a Ugandan nationality.
4. I have considered the affidavit of Illbert Mukuria, an advocate of the High Court dated 30th November, 2021. This Court is unable to place any reliance on what the said learned advocate deponed because in his response to the probation report he stated that the accused enjoys close community and family ties, the learned advocate failed to state the source of that positive information he gave of the accused. For that reason, his depositions are rejected.
5. I am aware that Article 49(1)(h) of the Constitution provides that there is right of an arrested person to be released on bail/bond on reasonable conditions, pending either trial or charge unless there are compelling reasons not to be released. The main function of granting bail/bond is to ensure the presence of an accused at trial.
6. The accused is facing a serious charge, which if found guilty will attract severe punishment. With that in mind, and because the nationality of the accused at this stage is not clear and that the probation pre-bail report indicates accused is a Ugandan national, I decline to grant the accused bail. I make reference to the case PETER KINYANJUI WAINAINA VS. REPUBLIC (2021 eKLR:-
“10. InREPUBLIC V JOHN KAHINDI KARISA & 2 OTHERS [2010] eKLR, Ibrahim J(as he then was) observed:
“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.”
7. At the reading of this Ruling the court will give a priority hearing date of this case.
RULING DATED AND DELIVERED AT KIAMBU THIS 10TH DAY OF FEBRUARY, 2022.
MARY KASANGO
JUDGE
CORAM:
COURT ASSISTANT: MOURICE
ACCUSED: BENSON OMAMO MUSIMBI : PRESENT
FOR ACCUSED: - MR. MUKURIA
FOR DPP: MR. KASYOKA & MR. BENJAMIN
COURT
RULING DELIVERED VIRTUALLY.
MARY KASANGO
JUDGE