[2013] KEHC 1345 (KLR)
The court found that although the applicant has been in custody for a significant period and both parties contributed to delays in the trial, the interests of justice would be better served by the expeditious conclusion of the trial rather than granting bail. The prosecution raised concerns about the likelihood of...
Source-derived case information.
- Citation
- [2013] KEHC 1345 (KLR)
- Parties
- Applicant: David Gatembo Mbeti; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 6 of 2011
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- application dismissed
- Judges
- CC Kipkorir
- 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
David Gatembo Mbeti
Applicant
Republic
Respondent
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial under Article 49 (i) h of the Constitution.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail to the applicant.
Ratio Decidendi
The court found that although the applicant has been in custody for a significant period and both parties contributed to delays in the trial, the interests of justice would be better served by the expeditious conclusion of the trial rather than granting bail. The prosecution raised concerns about the likelihood of absconding due to the strength of the evidence and the severity of the charge. The court exercised its discretion, finding that the circumstances did not warrant the applicant's release on bail at this stage, and thus dismissed the application.
Court Disposition
application dismissed
Orders
- The application for bail pending trial is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 6 OF 2011
REPUBLIC...................................................RESPONDENT
VERSUS
DAVID GATEMBO MBETI………..…..................APPLICANT
RULING
The applicant David Gatembo Mbeti, seeks to be admitted to bail pending the conclusion of his on-going trial. He is facing trial for the murder of Antonius Odhiambo. The offence is said to have been committed on 8th January 2011 at Nation Media in Embakasi Area within Nairobi Province.
The applicant states in his application dated 6th June 2013 that he has been in custody since 2011; that substantial ground has been covered in his case; and that there were no compelling reasons not to be released. He further states in his supporting affidavit that he was a matatu conductor and is willing to abide by any bond terms if released.
At the hearing of the application on 2nd October 2013, Mr. Wamwayi for the applicant expounded on the grounds of the application and the averments in the applicant’s supporting affidavit. He underscored the constitutional basis upon which the application is brought and the undertaking of the applicant to continue attending court if released.
The application is opposed by the state through the Replying Affidavit sworn by No. 70406 PC Joseph Ologe and the submissions tendered at the hearing by Ms. Matiru the prosecuting counsel. It is the state’s contention that the applicant was seen stabbing the deceased and that owing to the availability of strong evidence, he was likely to abscond to avoid conviction and the severe sentence that would follow. The state has urged the court to exercise discretion and deny the applicant bail. According to the prosecuting counsel, the state undertakes to expeditiously prosecute the matter which is already part-heard.
In considering this application I am guided by Article 49 (i) h of the Constitution which entitles any arrested person to be granted bail pending trial. The only fetter to this right is the existence of compelling reasons. It has been stated before that the duty of demonstrating the existence of compelling reasons rests with the prosecution. See Republic Vs. Danson Mgunya & Kassim Sheebwana Mohammed [2010] eKLR. It has also been stated that the determination of what qualifies to be “compelling reasons” is wholly left to the discretion of the court. See Republic Vs. Dwight Sagaray & 4 others Nairobi Criminal Case No. 61 of 2012 [UR].See also Republic –Vs- Patius Gichobi Njagi & 2 others. Nairobi HCCR. No. 45/2012 (UR).
In the present application both the applicant and the respondent acknowledge that substantial progress has been made in the trial. My perusal of the record shows that so far three out of seven witnesses have testified. It is also evident from the record that both parties initially contributed to delay in the trial as they sought time to engage in plea negotiations which later came a cropper.
Taking all facts and circumstances of this case into consideration, I am persuaded that the interests of justice shall better be served by the expeditious conclusion of the trial rather than admitting the applicant to bail.
The application is thus dismissed.
Ruling delivered, dated and signed at Nairobi this 6th day of November, 2013
R. LAGAT - KORIR
JUDGE
In the presence of:
…………………………….: Court clerk
……………………………: Applicant
……………………………: For the applicant
…………………………….: For the State/respondent