[2014] KEHC 6523 (KLR)
The court found that, following the promulgation of the Constitution of Kenya 2010, the right to bail applies to all accused persons, including those charged with capital offences such as murder, unless compelling reasons are provided to deny bail. In this case, the State, through the investigating officer's...
Source-derived case information.
- Citation
- [2014] KEHC 6523 (KLR)
- Parties
- Applicant: Republic; Respondent: Dennis Osiemo Borura
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 13 of 2013
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- Application for bail pending trial 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
Dennis Osiemo Borura
Respondent
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial for a charge of murder.
- 2 Whether there are compelling reasons to deny the accused bail under Article 49 (1) (h) of the Constitution.
Ratio Decidendi
The court found that, following the promulgation of the Constitution of Kenya 2010, the right to bail applies to all accused persons, including those charged with capital offences such as murder, unless compelling reasons are provided to deny bail. In this case, the State, through the investigating officer's affidavit, did not present any compelling reasons to oppose the accused's release on bond. The court therefore exercised its discretion in favour of the accused, granting bail on specified terms, as there was no legal or factual basis to justify continued detention pending trial.
Court Disposition
Application for bail pending trial allowed.
Orders
- The accused may be released on his own bond of Kshs.3,000,000 with two sureties of a like amount.
- The sureties shall be approved by the Deputy Registrar of this court.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO.13 OF 2013
REPUBLIC ………………………………………………. PROSECUTOR
VERSUS
DENNIS OSIEMO BORURA …………………….……….. ACCUSED
RULING
The accused person herein, Dennis Osiemo Borura is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code, the particulars being that on 8th day of February 2013 at Getare village, Onywere sub location in Marani District within Kisii County, he murdered James Osiemo Borura. The accused has pleaded not guilty and is awaiting trial.
Meantime, the accused seeks to be released on bond pending trial. He makes this application pursuant to Article 49 (I) (h) of the Constitution which provides that every arrested person has a right to be released on bail or bond pending trial unless there are compelling reasons why such a person cannot be released on bond.
The state filed an affidavit sworn by No.56600 Cpl Hellen Bii of Rioma police station. Cpl. Bii states that she is one of the investigating officers in the case, and that she does not have any compelling reasons to have the accused person denied bail. The deponent however avers that the discretion to grant or refuse bail/bond is that of the court.
It is to be noted that prior to the promulgation of the Constitution of Kenya 2010, persons charged with offences attracting a death penalty on conviction were not entitled to bail/bond. The new Constitution thus breathed a breath of fresh air into the hopes of persons such as the accused person herein. Secondly, if there are no compelling reasons to deny the accused bond, then the court would ordinarily exercise its discretion in favour of the accused.
Considering the circumstances of this case, and bearing in mind the fact that the state has not given any compelling reasons why the accused should be denied bond pending trial, I allow the application upon the following terms:-
The accused may be released on his own bond of Kshs.3,000,000/= (Three Million only) with two (2) sureties of a like amount.
The sureties shall be approved by the Deputy Registrar of this Hon. Court.
Once released on bond, the accused shall attend court once every thirty (30) days for mention of his case until the case is heard and determined or until further orders of this honourable court.
Mention on 24/02/2014.
Orders accordingly.
Dated and delivered at Kisii this 23rd day of January, 2014
R.N. SITATI
JUDGE.
In the presence of:
Miss Cheruiyot (present) for State
Mr. Nyagwencha (present) for Accused
Mr. Bibu - Court Clerk