[2017] KEHC 3224 (KLR)
The court found that the right to bail is a qualified constitutional right, not absolute, and may only be denied if compelling reasons are shown. Upon reviewing the pre-bail probation reports for each accused, the court found no compelling reasons to deny bail. The reports indicated that all three accused have fixed...
Source-derived case information.
- Citation
- [2017] KEHC 3224 (KLR)
- Parties
- Applicant: Republic; Defendant: David Ngatia Wahito; Defendant: Samuel Wanjohi Kihara; Defendant: Samuel Gitonga Ngarari
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 7 of 2017
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- bail granted
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Trial, Presumption of Innocence, Compelling Reasons for Bail, Constitutional Rights of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
David Ngatia Wahito
Defendant
Samuel Wanjohi Kihara
Defendant
Samuel Gitonga Ngarari
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the accused persons bail.
- 3 Whether the pre-bail reports support the release of the accused persons on bail.
Ratio Decidendi
The court found that the right to bail is a qualified constitutional right, not absolute, and may only be denied if compelling reasons are shown. Upon reviewing the pre-bail probation reports for each accused, the court found no compelling reasons to deny bail. The reports indicated that all three accused have fixed abodes, are supported by their communities, and pose no danger if released. The prosecution did not present any evidence or arguments to the contrary. Therefore, the court held that the accused are entitled to bail on reasonable terms pending trial.
Court Disposition
bail granted
Orders
- Each accused shall be released on bail pending trial on their own bond of Ksh. 500,000 and two sureties of Ksh. 500,000 each.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NANYUKI
CRIMINAL CASE NO. 7 OF 2017
REPUBLIC....................................................PROSECUTOR
VERSUS
DAVID NGATIAWAHITO................................1st ACCUSED
SAMUEL WANJOHI KIHARA......................2nd ACCUSED
SAMUEL GITONGA NGANGARI..................3rd ACCUSED
RULING
1. DAVID NGATIAWAHITO (WAHITO), SAMUEL WANJOHI KIHARA (KIHARA)andSAMUEL GITONGA NGARARI (NGARARI)stand jointly charged with the offence of murder Contrary to Section 203 as read with Section 204 of the Penal Code. They pleaded not guilty and they now await their trial. While awaiting their trial they have applied for bail.
2. The probation office provided a pre-bail report on each one of them.
3. Wahito who is 38 years old is married to two wives. He has six children. He supports his family through his motorcycle (bodaboda) business. The pre-bail report is positive for his release on bail. The report notes that Wahito has a fixed abode and that the community at his area of residence is willing to have him back because he poses no danger to them.
4. Kihara is 32 years old. He is married with three children Kihara supports his family through his boda boda business. The community where he has his fixed abode is receptive to his release on bail.
5. Ngarari is 35 years old. He is separated from his spouse. He lives on his father’s land. The community aroundthe area of his residence is receptive to his release on bail.
6. Their Learned Counsels, Ms.Thungu and Mr. Theuri submitted that the three applicants have constitutional right to bail as set out in Article 49 (1) (h). That Article provides:
“An arrested person has the right –
(a) ………....
(h)to be released on bond or bail, on reasonable conditions pending charge or trial unless there are compelling reasons not to be released”.
Learned Counsels also referred the court to the presumption of innocence of an arrested person articulated under Article 50 (2) (a) of the Constitution. That Article provides:
“Every accused person has the right to a fair trial which includes the right –
(b) to be presumed innocent until the contrary is proved.
7. The Constitutional provisions referred to by the Learned Counsels give arrested persons a qualified right to be released on bail on reasonable terms. In other words the right to bail is not absolute.
8. In my consideration of the pre-bail probation reports I find no compelling reasons to deny the applicants bail. That being so I order as follows:
(a) DAVID NGATIAWAHITO, SAMUEL WANJOHI KIHARA and SAMUEL GITONGA NGARARI shall be released on bail pending their trial on their own bond of Ksh. 500,000 and two sureties of Ksh. 500,000 for each oneof them.
Dated and Delivered at Nanyuki this 4th OCTOBER 2017
MARY KASANGO
JUDGE
Coram
Before Justice Mary Kasango
Court Assistant: Njue/Mariastella
1st Accused: David NgatiaWahito
2nd Accused: Samuel WanjohiKihara
3rd Accused: Samuel Gitonga Ngarari
For state:.............................................
For accused:......................................
Language ..........................................
COURT
Ruling delivered in open court
MARY KASANGO
JUDGE