[2016] KEHC 7056 (KLR)
The court held that the right to bail is constitutionally guaranteed and may only be limited by compelling reasons, which must be substantiated by evidence. In this case, the prosecution's allegations that the accused might abscond or interfere with witnesses were not supported by concrete evidence. The...
Source-derived case information.
- Citation
- [2016] KEHC 7056 (KLR)
- Parties
- Respondent: Republic; Applicant: David Kiilu Kiiti
- Court
- High Court
- Court Station
- High Court at Kitui
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2015
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- application allowed
- Judges
- LN Mutende
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Constitutional Rights of Accused, Interference With Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
David Kiilu Kiiti
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the accused bail.
- 3 Whether the accused is likely to abscond or interfere with witnesses if released on bail.
Ratio Decidendi
The court held that the right to bail is constitutionally guaranteed and may only be limited by compelling reasons, which must be substantiated by evidence. In this case, the prosecution's allegations that the accused might abscond or interfere with witnesses were not supported by concrete evidence. The investigating officer failed to provide specific incidents or evidence of threats or connections that would make the accused a flight risk or likely to interfere with witnesses. The court found that the applicant had a fixed abode, family ties, and was willing to comply with bail conditions. Therefore, there were no compelling reasons to deny bail, and the accused was entitled to be...
Court Disposition
application allowed
Orders
- The applicant is granted bond of Kshs. 1,500,000 with a surety of an equal amount.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITUI
CRIMINAL CASE NO. 1 OF 2015
REPUBLIC………………………………………..……..PROSECUTOR
VERSUS
DAVID KIILU KIITI..............…..………………………........ACCUSED
R U L I N G
1. The Applicant who is charged with the offence of Murdercontrary to Section 203as read with Section 204of the Penal Codeapproached this court by way of Notice of Motion seeking to be released on bail pending trial.
2. The application is premised on grounds that: the right to be released on bail is enshrined in the Constitution, Article 49(1)(h);following his arrest he has been in custody; there are no compelling reasons to disentitle him bail; he is a Kenyan Citizen with a fixed place of abode, married with children; he is willing to abide with all the terms and conditions of bond to be imposed; he will not abscond or interfere with witnesses or the Prosecution of the case; He is a sole breadwinner and has an elderly mother who depends on him.
3. In response thereto the state opposed the application through an affidavit sworn by No. 100604 P C Montegomery Ondegowho stated that the accused was likely to abscond if released on bond as the community is bitter with him and may lynch him. The police having supplied the accused with statements he may interfere with witnesses who live in the same locality with him.
4. Bail is an accused person’s constitutional right. The primary consideration is whether the accused will turn up for trial.
5. There may be other factors the court may consider like: failure of the accused to surrender to bail on previous occasions, the likelihood of the accused interfering with witnesses, the character of the accused and whether he has a settled address. (See Mogotsi and Another vs. The State 1990 BLR 142 (HC).
6. It is not enough for the Prosecution to make allegations that the accused is likely to interfere with witnesses or that he may abscond. Denial of bail unless there are compelling reasons hinges on infringement of his/her constitutional right. It is for these reason that the Prosecution must not make allegations without any basis.
7. The Investigation Officer was required to go an extra mile of availing evidence to establish what connection the Applicant has with these people in his locality whom he may interfere with. There should have been an attempt to give incidents establishing actual threats on the accused person’s life that may be an incentive to make him a flight risk.
8. Having considered the application in totality I allow the application by granting the Applicant bond of Kshs. 1. 5 Millionwith a surety in an even sum.
9. It is so ordered.
Dated, Signed and Deliveredat Kitui this 9thday of December,2015.
L. N. MUTENDE
JUDGE