[2021] KEHC 9262 (KLR)
The court found that the prosecution failed to provide any affidavit or evidence of compelling reasons to deny the accused persons bond. The pre-bail reports indicated the accused were suitable for release. In the absence of compelling reasons, the constitutional right to bail prevails. Therefore, the accused are...
Source-derived case information.
- Citation
- [2021] KEHC 9262 (KLR)
- Parties
- Applicant: Republic; Defendant: David Mwatsuma Safari; Defendant: Yusuf Said Ndurya; Defendant: Diwani Kahindi Nyale; Defendant: Ngombo Karisa Nyale; Defendant: Salim Kalu Kahindi; Defendant: Juma Kahindi Nyale; Defendant: Dzombo Kanga Luvande
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Case EO21 of 2020
- Procedural Posture
- Criminal Case / Bond Application
- Outcome
- Bond granted to all accused persons.
- Legal Topics
- Murder, Bail and Bond, Pretrial Release
- 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
Applicant
David Mwatsuma Safari
Defendant
Yusuf Said Ndurya
Defendant
Diwani Kahindi Nyale
Defendant
Ngombo Karisa Nyale
Defendant
Salim Kalu Kahindi
Defendant
Juma Kahindi Nyale
Defendant
Dzombo Kanga Luvande
Defendant
Procedural Posture
Criminal Case / Bond Application
Legal Issues
- 1 Whether the accused persons are entitled to release on bond pending trial.
- 2 Whether there are compelling reasons to deny bond to the accused persons.
Ratio Decidendi
The court found that the prosecution failed to provide any affidavit or evidence of compelling reasons to deny the accused persons bond. The pre-bail reports indicated the accused were suitable for release. In the absence of compelling reasons, the constitutional right to bail prevails. Therefore, the accused are entitled to be released on bond pending trial, subject to reasonable conditions set by the court.
Court Disposition
Bond granted to all accused persons.
Orders
- Each accused person to be released on bond of Kshs. 500,000 with a surety of a similar amount.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL CASE NO. EO21 OF 2020
REPUBLIC.............................................................................................DPP
VERSUS
1. DAVID MWATSUMA SAFARI
2. YUSUF SAID NDURYA
3. DIWANI KAHINDI NYALE
4. NGOMBO KARISA NYALE
5. SALIM KALU KAHINDI
6. JUMA KAHINDI NYALE
7. DZOMBO KANGA LUVANDE...........................................ACCUSEDS
J U D G M E N T
1. The accused persons
i. David Mwatsuma Safari alias Laboth
ii. Yusuf Said Ndurya
iii. Diwani Kahindi Nyale
iv. Ngombo Karisa Nyale
v. Salim Kalu Kahindi
vi. Juma Kahindi Nyale
vii. Dzombo Kanga Luvande
are jointly charge with the offence of Murder contrary to Section 203 as read with Section 204 of the penal code Chapter 63 Laws of Kenya.
2. The particulars are that the accused persons herein on the 13th day of December 2020 at Junda Location, Kisauni SubCounty within Mombasa County jointly with others not before court murdered David Wabuka Otua. The accused persons pleaded not guilty to the charge against them and applied for release on bond.
3. This court called for Pre-bail Reports in respect to each accused persons and the same were filed on 18/1/2021. In the Pre-bail Reports the Probation Officer Rosemary Nyonga inquires established that the accused persons were suitable to be released on bond pending trial.
4. In accordance to Article 49(1) (h) of the Constitution of Kenya 2010:-
“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”.
5. The prosecution in this case did not file any affidavit by the Investigating Officer with compelling reasons why the accused persons cannot be released on bond. In the circumstances the accused persons are entitled to go through trial while on bond.
6. The accused persons will therefore be released on bond of Kshs.500,000/= each with a surety of a similar amount.
Dated, signedand deliveredat Mombasathis3rdday ofFebruary 2021.
HON. LADY JUSTICE A. ONG’INJO
JUDGE