[2012] KEHC 3336 (KLR)
The court found that the prosecution's grounds for opposing bail—alleged tension in the area and the applicants' purported membership in the outlawed Mungiki Sect—were not supported by cogent evidence. The alleged offence occurred nearly a year prior, and the court reasoned that any tension would have subsided...
Source-derived case information.
- Citation
- [2012] KEHC 3336 (KLR)
- Parties
- Respondent: Republic; Applicant: Charles Mwangi Mweregi; Applicant: Linus Mwirigi Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 26 of 2011
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Murder Charge, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Charles Mwangi Mweregi
Applicant
Linus Mwirigi Mwangi
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether the prosecution has established compelling reasons to deny bail to the applicants.
Ratio Decidendi
The court found that the prosecution's grounds for opposing bail—alleged tension in the area and the applicants' purported membership in the outlawed Mungiki Sect—were not supported by cogent evidence. The alleged offence occurred nearly a year prior, and the court reasoned that any tension would have subsided during the applicants' time in custody. There was no credible evidence linking the applicants to the Mungiki Sect or any other proscribed society. The court concluded that the prosecution had failed to demonstrate compelling reasons to deny bail, and therefore, the applicants were entitled to be released on bond pending trial as a constitutional right.
Court Disposition
application allowed
Orders
- Applicants to be released upon signing a bond of Ksh.500,000 with one surety of like sum.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NYERI
Criminal Case 26 of 2011
REPUBLIC……………………………..…………………………………………PROSECUTOR
-versus-
1. CHARLES MWANGI MWEREGI……………………………...1ST ACCUSED/APPLICANT
2. LINUS MWIRIGI MWANGI………………….……………….2ND ACCUSED/APPLICANT
R U L I N G
This ruling is the outcome of the application dated 8th November 2011, in which Charles Mwangi Mweregi and Linus Mwirigi Mwangi, prayed to be released on bond pending trial pursuant to the provisions of Article 49(1) h of the Constitution. The application is supported by the affidavit of H. K. Ndirangu and a further affidavit of Charles Mwangi Mweregi. The Director of Public Prosecutions filed a Replying Affidavit of P. C. Richard Labong, to oppose the motion.
The Applicants herein are before this court to face a charge of Murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the charge are that: On 22nd August 2011, at Kiuu Village, Nginda Location in Murang’a County, jointly murdered Peter Irungu Mwirigi. Their trial is yet to begin. Pending the hearing of the case,they beseech this court to release them on bond pending trial. Under Article 49 (1) h of the Constitution, the Applicants are entitled to be released on bond pending trial unless compelling reasons are given to the court to deny them that right. In the affidavit of P.C. Richard Labong, the Director of Public Prosecutions has urged this court not to grant the accused persons bail. It is deponed in the aforesaid affidavit that there is tension in the area and a breach of peace may occur if the accused persons are released on bail. It is further alleged that the accused persons are known members of the outlawed Mungiki Sect, hence members of public may lynch them if they are released on bond. These are the main reasons which the office of the Director of Public Prosecutions relied on as compelling reasons. The Applicants denied being members of the outlawed Mungiki Sect or any other proscribed society. They also denied knowledge of any evidence of tension at their home.
I have considered the grounds argued in support and against the application. In my view, the grounds raised by the office of the Director of Public Prosecutions cannot be regarded as compelling reasons. In the circumstances of this case, the offence is alleged to have taken place on 22nd August 2011, nearly a year ago. With profound respect, having considered the submissions of the Director of Public Prosecutions, I think tension must have reduced due to the period the accused persons have been in custody. There is therefore no cogent evidence to show that the accused persons are members of the outlawed Mungiki Sect, or any other proscribed society. In the circumstances, I am convinced the Applicants should be released on bond. Consequently, I allow the motion as prayed. The Applicants to be released upon signing a bond of Ksh.500,000/= with one surety of like sum.
Dated and delivered this 6th day of July 2012.
……………………………………………………………
J. K. SERGON
JUDGE
In Open Court in the presence of Mr. Ndirangu for Accused and Miss Maundu for the Director of Public Prosecutions.