[2019] KEHC 3495 (KLR)
The court found that although the 3rd accused had breached the terms of his bond by failing to attend court, the fact that his surety (his father) produced him in court and remained willing to stand surety was a significant mitigating factor. The court exercised its discretion to reinstate the bond, warning the...
Source-derived case information.
- Citation
- [2019] KEHC 3495 (KLR)
- Parties
- Applicant: Republic; Defendant: Benard Muriuki Mbaya; Defendant: Bonface Kiogora; Defendant: Jamlick Kaburu Muguna
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 83 of 2015
- Procedural Posture
- Criminal Case / Ruling on Application for Reinstatement of Bond
- Outcome
- application for reinstatement of bond allowed
- Judges
- A Mabeya
- Legal Topics
- Bond Reinstatement, Bail Conditions, Flight Risk, Breach of Bond Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Benard Muriuki Mbaya
Defendant
Bonface Kiogora
Defendant
Jamlick Kaburu Muguna
Defendant
Procedural Posture
Criminal Case / Ruling on Application for Reinstatement of Bond
Legal Issues
- 1 Whether the 3rd accused is entitled to reinstatement of bond after breaching bond terms.
- 2 Whether the explanation for the 3rd accused's absence is sufficient to warrant a second chance.
Ratio Decidendi
The court found that although the 3rd accused had breached the terms of his bond by failing to attend court, the fact that his surety (his father) produced him in court and remained willing to stand surety was a significant mitigating factor. The court exercised its discretion to reinstate the bond, warning the accused that any future non-attendance would be dealt with severely. The decision balanced the constitutional right to bond with the need to ensure compliance with court orders and the administration of justice.
Court Disposition
application for reinstatement of bond allowed
Orders
- Bond for the 3rd accused is reinstated on previous terms.
- The 3rd accused is warned that future non-attendance will result in severe consequences.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CRIMINAL CASE NO. 83 OF 2015
REPUBLIC.........................................PROSECUTOR
VERSUS
BONFACE KIOGORA....................... 1ST ACCUSED
JAMLICK KABURU MUGUNA.......2ND ACCUSED
BENARD MURIUKI MBAYA........... 3RD ACCUSED
R U L I N G
1. Benard Muriuki Mbaya (“the 3rd accused”)faces the charge of murder contrary to sections 203as read with section 204 of the Penal Code, Cap 63 Laws of Kenya. He was admitted to bond together with the other 2 accused on 11th May, 2016. He was released on a bond of Kshs.250,000/- with a surety of a similar amount.
2. On 22nd May, 2018 and subsequent mentions, failed to attend court. The court cancelled his bond, issued a warrant for his arrest and summoned the surety. Before the warrant could be executed, the surety produced the accused in court on 8th October, 2018. On that date the court declined to pardon him for his absence and placed him in custody.
3. On 25th February, 2019, Mr. Mutegi, Learned Counsel for the 3rd accused made a formal application for the re-instatement of his bond. The application was supported by the affidavit of the 3rd accused. He explained the reason for his non-attendance and promised that he has learnt his lesson for the 4 months he has been in custody.
4. At the hearing of the application, Mr. Mutegi relied on the averments in the supporting affidavit and urged that the 3rd accused should be given another chance. Mr. Gitonga, Learned prosecutor opposed the application. He insisted that the 3rd accused is flight risk.
5. I have considered the averments in the supporting affidavit and the submissions of learned Counsel. Bond is usually a constitutional right which an accused is entitled to but on terms. Once an accused breaches any of the terms thereof, he loses that right.
6. In the present case, the 3rd accused breached one of the terms of his bond. I have however taken into consideration that, his father who is his surety not only produced him in court when called upon, but he also attended court on 26th February, 2019 at the hearing of the application and confirmed to court that he was still willing to stand surety for the 3rd accused.
7. Having considered the positions of the parties before me and the position taken by the surety, I will allow the application and re-instate the bond. The 3rd accused is warned that next time he fails to appear, the court will deal with him without mercy.
Orders accordingly.
DATED and DELIVERED at Meru this 24th day of October, 2019.
A. MABEYA
JUDGE