[2014] KEHC 6601 (KLR)
The court found that there were no compelling reasons provided by the State to deny the applicants their constitutional right to bail. The Bail Assessment Reports were generally favorable, and although there was some tension in the community, this did not amount to a compelling reason to continue detaining the...
Source-derived case information.
- Citation
- [2014] KEHC 6601 (KLR)
- Parties
- Respondent: Republic; Applicant: Daniel Areba; Applicant: John Kebaso Nyakundi alias Mosomba
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 41 of 2010
- Procedural Posture
- Bail Application / Ruling on Application for Review of Bail Revocation
- Outcome
- application for review of bail revocation allowed; applicants granted bail on new terms
- Judges
- AT Sitati
- Legal Topics
- Bail Pending Trial, Constitutional Rights of Accused, Review of Bail Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Respondent
Daniel Areba
Applicant
John Kebaso Nyakundi alias Mosomba
Applicant
Procedural Posture
Bail Application / Ruling on Application for Review of Bail Revocation
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial after previous bail orders were vacated.
- 2 Whether there are compelling reasons to deny the applicants bail under Article 49 (1) (h) of the Constitution.
- 3 Whether the Bail Assessment Reports support the release of the applicants on bond.
Ratio Decidendi
The court found that there were no compelling reasons provided by the State to deny the applicants their constitutional right to bail. The Bail Assessment Reports were generally favorable, and although there was some tension in the community, this did not amount to a compelling reason to continue detaining the applicants. The court also considered the applicants' age and the length of time they had already spent in custody. Accordingly, the court ordered their release on bond with strict conditions to ensure their attendance at trial and compliance with the law.
Court Disposition
application for review of bail revocation allowed; applicants granted bail on new terms
Orders
- The applicants shall be released on a personal bond of KES 1,000,000 each with two sureties each in the same amount to be approved by the Deputy Registrar.
- Upon release, the accused shall attend the mention of their case after every thirty days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MURDER CASE NO.41 OF 2010
REPUBLIC …………………………………………. PROSECUTOR/RESPONDENT
VERSUS
DANIEL AREBA ……………………..…………………………….. 1ST APPLICANT
JOHN KEBASO NYAKUNDI alias MOSOMBA ……...…..…….… 2ND APPLICANT
RULING
1. The applicants herein Daniel Areba and John Kebaso Nyakundi alias Mosomba have been charged in High Court Criminal Case No.41 of 2010 with murder contrary to Section 203as read with Section 204. The two had been granted bail sometime on 4th April 2011 but on the 24th June 2011 the state applied that the said orders be vacated and the orders were so vacated as prayed. They have now approached this court with an application for review of the orders vacating the orders granting them bail and are again seeking to be released on bond/bail pending the hearing of their case.
2. The application is brought under Article 49 (I) (h)of the Constitution and Section 124of the Criminal Procedure Code Cap 75 Laws of Kenya and is grounded upon their annexed affidavits and upon the further grounds that the Witness Protection Act is in force, and that it is their constitutional right to be released on bail. They also contend that they have families to take care of and that they are ready to abide by any conditions that may be imposed by this court.
3. The application, dated 1st December 2011 is filed by J.M. Nyagwencha Advocate who acts for both the applicants. The main case has been fixed for hearing on the 27th February 2014. Before proceeding with the application the court on 19th November 2013 ordered for Bail Assessment Reports which have been availed by Mr. Kirui.
4. Mr. Nyagwencha for the applicants submitted that from the replying affidavit sworn by Cpl Joshua Tobole NO.46478 he was not the investigating officer and he had not recorded any statement and therefore there was no reason why accused persons should be denied bond. That in paragraph 7 of the affidavit it is alleged that the family of one Rodgers cannot live peacefully as it is under threat of the accused persons. Counsel submitted that there is no witness by the name Rogers and that the only Rodgers mentioned in this matter is the deceased. He concludes by submitting that there is no good reason to deny the accused persons bond.
5. Mr. Wainaina for the state requested for time to confirm whether Cpl Tobole is the Investigating Officer and to respond to the allegations raised by the applicants’ counsel but the same was denied.
6. When issuing its orders on the 4th April 2011 Justice Makhandia allowed the accused persons herein to be released on a personal bond of Kshs.500,000/= each with two sureties each in the same amount to be approved by the Deputy Registrar of the court. Upon release the accused were required to attend court for the mention of their case after one month.
7. From the Bail Assessment Report by the Probation Officer, the same seem favourable to the applicants. It is not clear whether Cpl Joshua Tobole is the Investigating Officer in this case and whether he had recorded a statement, but the Bail Assessment Report on John Kabaso Nyakundi shows that there is still tension on the ground, although he is recommended for bond.
8. The applicants herein are quite elderly. Though there seems to be some tension on the ground, I find that there are no compelling reasons given by the State to deny them their constitutional right of being admitted to bail as provided under Article 49 (I) (h)of the Constitution of Kenya. Moreover the accused persons have been in custody from 2011 to 2014 (about two and a half years).
9. Having said the above, I find no reason to detain the accused persons in remand pending the hearing of their case on 27th February 2014 subject to the conditions set out herein. The accused persons shall be released on a personal bond of Kshs.1, 000,000/= (Kshs. One Million) each with two sureties each in the same amount to be approved by the Deputy Registrar of the court. Upon release the accused shall attend the mention of their case after every thirty days. They are also to present themselves before the area chief on Friday of every week until their case is heard and determined. Failure to abide by the conditions set herein will have dire consequences, including cancellation of the bond. Hearing of the case on 27th February, 2014.
Dated, signed and delivered at Kisii this 6th day of February, 2014
R.N. SITATI
JUDGE
In the presence of:
Mr. Nyagwencha (present) for the Applicants
Mr. Ochieng (present) for the Respondent
Mr. Bibu - Court Clerk