[2014] KEHC 1621 (KLR)
The court found that the State failed to provide any affidavit or evidence demonstrating compelling reasons to deny the applicants bail. The court considered the probation officer's reports, which recommended bond for several applicants and did not indicate any risk factors such as likelihood of absconding or...
Source-derived case information.
- Citation
- [2014] KEHC 1621 (KLR)
- Parties
- Respondent: Republic; Applicant: Daniel Kenyanya Nyaata; Applicant: Swanya Keburagi; Applicant: Evans Keburagi James; Applicant: Eric Swanya Keburagi; Applicant: Isaac Mosomi Onsombi; Applicant: Geoffrey Keburagi Nyambagi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 37 of 2014
- Procedural Posture
- Criminal Murder / Ruling on Bail Application Pending Trial
- Outcome
- Application for bail allowed.
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Murder Charge, Probation Reports
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Daniel Kenyanya Nyaata
Applicant
Swanya Keburagi
Applicant
Evans Keburagi James
Applicant
Eric Swanya Keburagi
Applicant
Isaac Mosomi Onsombi
Applicant
Geoffrey Keburagi Nyambagi
Applicant
Procedural Posture
Criminal Murder / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the applicants are entitled to bail pending trial for the offence of murder.
- 2 Whether the State has demonstrated compelling reasons to deny bail to the applicants.
Ratio Decidendi
The court found that the State failed to provide any affidavit or evidence demonstrating compelling reasons to deny the applicants bail. The court considered the probation officer's reports, which recommended bond for several applicants and did not indicate any risk factors such as likelihood of absconding or interference with witnesses. The applicants are members of the same family or closely related, come from humble backgrounds, and have people willing to stand surety. In the absence of compelling reasons from the prosecution and based on the applicants' personal circumstances, the court held that there was no justification to deny bail. Accordingly, the application for bail was...
Court Disposition
Application for bail allowed.
Orders
- Each applicant may be released on bond of Kshs.500,000 with two sureties of a like amount, approved by the Deputy Registrar.
- Once released on bond, the applicants shall appear before the Deputy Registrar every 30 days for mention until the case is heard and determined or until further orders.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL MURDER NO. 37 OF 2014
REPUBLIC............................................................PROSECUTOR
VERSUS
DANIEL KENYANYA NYAATA
SWAYA KEBURAGI
EVANS KEBURAGI JAMES........................................ACCUSED
ERIC SWANYA KEBURAGI
ISAAC MOSOMI ONSOMBI
GEOFFREY KIBURAGI NYAMBAGI
RULING
1. The 6 applicants, Daniel Kenyanya Nyaata, Swanya Keburagi, Evans Keburagi James, Erick Swanya Keburagi, Isaac Mosomi Onsombi and Geoffrey Keburagi Nyambagi are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on the 4th day of March 2014 at 6. 00 a.m., at Bonyatach Sub location in Gucha District within Kisii County in the Republic of Kenya, they murdered Bocheri Onsombi. They all denied the offence and are awaiting trial.
2. In the meantime, they seek to be released on bond or bail in accordance with the provisions of Article 49 (1) of the Constitution 2010, which provides that “an arrested person has the right ….. to be released on bond or bail, on reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released.”
3. The party charged with the responsibility of showing that there are compelling reasons not to release an accused person on bond or bail is the State. Although the constitution does not define what amounts to “compelling reasons” it is in no doubt that compelling reasons are such reasons as would make it uncomfortable for the court to release an applicant on bond. In my considered view, a case in which an applicant is unlikely to attend court once released on bond/bail, or a case where the release of an applicant will jeopardize the security of the community or the safety of witnesses are some of the reasons I would consider as compelling to deny an applicant bond/bail.
4. In the instant case, the State has not filed any affidavit to show whether or not there are any compelling reasons why the accused persons may not be released on bond, although prosecution counsel undertook to do so.
5. In an effort to get a cleaver picture of each of the 6 applicants, the court called for and obtained probation Officer's Reports. The reports were filed in court on 13th June 2014. The 1st accused, who is aged 24 years old is married with 2 children. There are people willing to stand surety for him. The 2nd accused is 74 years old. He is said to be in poor health. He is recommended for bond. The 3rd accused is aged 28 years, and married with children. There are people willing to stand surety for him. The 4th accused is 18 years old and is son of a single mother who is deceased. He has one younger brother and both are in the care of the 2nd accused herein. He is single. There are relatives willing to stand surety for him. The 5th accused is aged 25 years old. He is married with 2 children. He is recommended for bond. The 6th accused is aged 32 years old. He dropped out of school at standard 6. He is married with 4 children. He is recommended for bond.
6. From a reading of the Probation Officer's Reports, the deceased may have died form lynching by members of the public. The applicants are all members of one family or are closely related. They come from humble background.
7. Considering the fact that the state has not put forward any compelling reasons why the applicants or any of them may not be released on bond, and taking into account the contents of the Probation Officer's Reports, I am satisfied that there are no compelling reasons why the applicants may not be released on bond/bail pending trial. I therefore allow the application on the following terms:-
1. Each applicant may be released on bond of Kshs.500,000/= (Kenya Shillings Five Hundred Thousand only) with 2 sureties of a like amount. Such sureties shall be approved by the DR of this Honourable Court.
2. Once released on bond, the applicants shall appear before the DR of this Honourable Court once every 30 days for mention of their case until the case is heard and determined or until further orders of this court.
3. In default of 2 above, the bond shall stand cancelled and the sureties taken to account.
4. Mention on 01/09/2014.
8. Orders accordingly.
Delivered, dated and signed here at Kisii in open court on the 1st day of August, 2014
R.N. SITATI
JUDGE.
In the presence of:-
Mr. Majale (present) for State
Mr. C.A. Okenye h/b for E. Asati for Accused
Mr. Bibu - Court Assistant