[2012] KEHC 411 (KLR)
The court held that under Article 49(i)(h) of the Constitution of Kenya 2010, every accused person is entitled to bail, including those charged with capital offences. The court considered the established parameters for granting bail, including the likelihood of the accused appearing for trial, the possibility of...
Source-derived case information.
- Citation
- [2012] KEHC 411 (KLR)
- Parties
- Respondent: Republic; Applicant: Dennis Nthenge Charles
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 6 of 2009
- Procedural Posture
- Criminal Case / Bail Application Pending Trial
- Outcome
- application_allowed
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Trial, Right to Bail, Capital Offences, Flight Risk, Witness Interference
- 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
Respondent
Dennis Nthenge Charles
Applicant
Procedural Posture
Criminal Case / Bail Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(i)(h) of the Constitution.
- 2 Whether there is a likelihood of the accused interfering with witnesses or investigations.
- 3 Whether the accused is a flight risk or likely to commit further offences.
Ratio Decidendi
The court held that under Article 49(i)(h) of the Constitution of Kenya 2010, every accused person is entitled to bail, including those charged with capital offences. The court considered the established parameters for granting bail, including the likelihood of the accused appearing for trial, the possibility of interference with witnesses, the risk of committing further offences, and the safety of the accused. In this case, the main prosecution witnesses had already testified, reducing the risk of interference. The State did not oppose the application, and the remaining witnesses were a doctor and a police officer, further minimizing the risk. The court found no evidence that the accused...
Court Disposition
application_allowed
Orders
- The accused is released upon paying cash bail of Kshs.100,000 or signing bond for Kshs.200,000 with one surety of similar amount.
- The accused shall attend all mentions and hearings of the case.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
Criminal Case 6 of 2009 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; font-size:10. 0pt;"Times New Roman","serif";} </style> <![endif]
REPUBLIC …………………………………………..………………. PROSECUTOR
VERSUS
DENNIS NTHENGE CHARLES ……........……………………………..… ACCUSED
R U L I N G
After three prosecution witnesses finished testifying Mr Mung’ata, counsel for the accused filed an application by way of a Notice of Motion for bail dated 17th August 2012.
The application was brought under Article 49(h) of the Constitution of Kenya. The grounds of the application are that the applicant was employed and a law abiding citizen; that he had a permanent place of abode, and was therefore not a flight risk; that he was of good moral standing; that his release would enable him adequately prepare for his defence; that the interests of justice required that the orders sought be granted.
The learned State Counsel Mr Mwenda did not object to the application. Counsel submitted that only three witnesses, one being a doctor and one the investigating officer, had not testified.
This is an application for bail pending trial. Under Article 49(i) (h) of the Kenya Constitution 2010 every accused person is entitled to bail. It does not matter if the offence is a capital offence. Bail is meant to secure the attendance of an accused person for the trial.
The release on bail for capital offenders in Kenya is a new development that came into being with the Constitution which was promulgated in August 2010. As a result, courts have been developing parameters for the releasing on bail of accused persons in such situations. The parameters that have been taken by courts in such applications include the following:-
(a)The likelihood that the accused person will appear for trial.
(b)The likelihood that the accused person will interfere with witnesses or investigations.
(c)The severity of the sentence likely to be imposed in the event of a conviction.
(d)The likelihood of commission of more offences or whether the accused person is a risk to the community.
(e)The safety or security of the accused person.
In our present case, the main prosecution witnesses have testified. I do not see any possibility of interference with witnesses. The State also does not oppose the grant of bail. In addition, two of the three remaining witnesses are a doctor and a police officer. In my view also, the accused is not likely to commit further offences. I will grant him bail.
In the result, I allow the application and order that the accused be released upon his paying cash bail of Kshs.100,000/= or his signing bond for Kshs.200,000/= with one surety of similar amount. He will attend all mentions and hearings of the case.
Dated and delivered at Machakos this 5thday of December2012.
George Dulu
Judge
In presence of:
N/A for State
Mr Kasyoka holding brief for Mr Mung’ata for Accused
Accused present
Mutinda – Court clerk