[2016] KEHC 5421 (KLR)
The court held that the Constitution requires bond or bail terms to be reasonable. Where the terms are unaffordable to the accused and there are no compelling reasons to deny bond, such terms become unreasonable and unconstitutional. Since the accused demonstrated inability to afford the original bond terms and the...
Source-derived case information.
- Citation
- [2016] KEHC 5421 (KLR)
- Parties
- Respondent: Republic; Applicant: Bernard Obaigwa Atei
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 6 of 2016
- Procedural Posture
- Criminal Case / Ruling on Bond Review Application
- Outcome
- bond terms reviewed and reduced
- Judges
- CB Nagillah
- Legal Topics
- Bail and Bond, Constitutional Rights of Accused, Review of Bond Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Bernard Obaigwa Atei
Applicant
Procedural Posture
Criminal Case / Ruling on Bond Review Application
Legal Issues
- 1 Whether the original bond terms imposed on the accused were reasonable as required by Article 49(1)(h) of the Constitution.
- 2 Whether the accused is entitled to a review of bond terms due to inability to afford the original terms.
Ratio Decidendi
The court held that the Constitution requires bond or bail terms to be reasonable. Where the terms are unaffordable to the accused and there are no compelling reasons to deny bond, such terms become unreasonable and unconstitutional. Since the accused demonstrated inability to afford the original bond terms and the State did not provide compelling reasons to maintain them, the court found it appropriate to review the bond terms downward. The court therefore reduced the bond to Kshs.500,000 with one surety of a similar amount, maintaining the other conditions from the previous ruling.
Court Disposition
bond terms reviewed and reduced
Orders
- The accused may be released on his own bond of Kshs.500,000 plus one surety of similar amount.
- Other terms as set out in the earlier ruling to remain the same where relevant.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
HIGH COURT CRIMINAL CASE NO.6 OF 2016
REPUBLIC…………………………….STATE
-VERSUS-
BERNARD OBAIGWA ATEI…..…ACCUSED
R U L I N G
On 30th March 2016, the accused person applied for review of his bond terms delivered on 17th December, 2013 in Kisii High Court by Lady Justice R.N. Sitati.
In that ruling the terms of the bond were as follows:
The accused may be released on his own bond of Kshs.1000,000/= (Kenya Shillings One Million) plus 2 sureties of a like amount.
The sureties shall be approved by the Deputy Registrar of this court.
The accused shall attend court once every 30 days for mention of his case until the case is heard and determine or until further orders of this honourable court.
In default of any one appearance for no justifiable causes, the bond shall stand cancelled and the sureties called to account.
Mention on 17/01/2014.
The applicant states he has been unable to afford the terms set out in this ruling, as supra. He applies for affordable or reasonable terms. Article 49 (i) (h) is clear on the need for the accused person to be released on bond, or bail on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.
The emphasis is on the word “reasonable conditions”
Therefore when the terms of the bond are unaffordable, as in this case, then, in my view, the terms are deemed unreasonable and therefore prohibited by the constitution if there are no compelling reasons to deny bond as in this case.
In view hereof, this court will review the bond terms as here below:
The accused may be released on his own bond of Kshs.500,000 plus one surety of similar amount.
Other terms as set out in the earlier ruling to remain the same in as much there is relevance, that is, from 2 to 4 thereof.
Mention on 23rd of May 2016.
Orders accordingly.
Dated and delivered at Nyamira this 22nd day of April 2016.
C.B. NAGILLAH
JUDGE
In the presence of:-
Nyamwange hold brief for Ochok for accused person
Konga for the State
Mercy- Court Clerk