[2011] KEHC 1549 (KLR)
The court found that the accused persons are entitled to bail as a constitutional right under Article 49(1)(h) of the Constitution of Kenya. No compelling reasons were advanced by the prosecution to justify denial of bail. The pre-bail report indicated that both accused had fixed abodes, were gainfully employed...
Source-derived case information.
- Citation
- [2011] KEHC 1549 (KLR)
- Parties
- Applicant: Republic; Defendant: David Mendua Mututa alias Kichapo; Defendant: Alfred Mustafa David
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 9 of 2011
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- application_allowed
- Legal Topics
- Bail Pending Trial, Murder Charge, Compelling Reasons, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Mendua Mututa alias Kichapo
Defendant
Alfred Mustafa David
Defendant
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial for the offence of murder.
- 2 Whether there exist compelling reasons to deny the accused persons bail.
Ratio Decidendi
The court found that the accused persons are entitled to bail as a constitutional right under Article 49(1)(h) of the Constitution of Kenya. No compelling reasons were advanced by the prosecution to justify denial of bail. The pre-bail report indicated that both accused had fixed abodes, were gainfully employed prior to arrest, and had strong family and community ties, making them unlikely to abscond. The court therefore admitted both accused to bond with sureties as specified.
Court Disposition
application_allowed
Orders
- Both accused persons are admitted to bond of Kshs. 500,000 each with two Kenyan sureties of like sum.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE NO. 9 OF 2011
REPUBLIC.........................................................................................................PROSECUTION
=VERSUS=
DAVID MENDUA MUTUTA alias KICHAPO...................................................1ST ACCUSED
ALFRED MUSTAFA DAVID...............................................................................2ND ACCUSED
RULING
The two accused persons DAVID MENDUA MUTUTA and ALFRED MUSTAFA DAVID are jointly charged with the offence of Murder contrary to Section 203 as read with S. 204 of the Penal Code. MR. GAKUHI counsel for the two accuseds has applied that they be released on bail pending the hearing and determination of their case. MR. ONSERIO learned State Counsel raised no objection to the release of the two accused persons on bond. The right of ALL suspects to be released on bond is clearly provided by Article 49(1) (h) of the Constitution of Kenya. The only exception to this right is where ‘compelling reasons’ are advanced to deny a suspect bail. In this case no such compelling reasons have been advanced. I have read and considered the pre-bail report filed by the Probation Department. Both accuseds were in gainful employment prior to their arrest. They both have families and are of fixed abode in Dili Dau village in Taita-Taveta County. They both have roots in the society and in my view cannot be considered a high-flight risk. I do therefore allow this application and admit the two accused persons to bond in the terms of Kshs.500,000/- + two (2) Kenyan sureties each of like sum.
Read in open court.
M. ODERO
JUDGE
8TH JULY 2011
In the presence of:
Mr. Mushelle holding brief for Mr. Gakuhi
Mr. Onserio for State