[2013] KEHC 4345 (KLR)
The court held that while the prosecution's concerns about potential witness interference and family hostilities may be valid, these were not substantiated by affidavit evidence as required. However, the court also considered the practical risk of releasing the accused into a potentially volatile environment where...
Source-derived case information.
- Citation
- [2013] KEHC 4345 (KLR)
- Parties
- Applicant: Edwin Kipchirchir Lagat; Respondent: Republic of Kenya
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 115 of 2012
- Procedural Posture
- Criminal Appeal / Ruling on Bond Application
- Outcome
- Bail application declined pending pre-bail report.
- Judges
- AW Macharia
- Legal Topics
- Bail and Bond, Witness Interference, Compelling Reasons, Pre Bail Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Kipchirchir Lagat
Applicant
Republic of Kenya
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bond Application
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail, specifically the likelihood of interference with witnesses.
- 3 Whether the shared homestead between the accused and the victim's family constitutes a compelling reason to deny bail.
Ratio Decidendi
The court held that while the prosecution's concerns about potential witness interference and family hostilities may be valid, these were not substantiated by affidavit evidence as required. However, the court also considered the practical risk of releasing the accused into a potentially volatile environment where both families reside in the same compound, which could lead to further offences. Balancing these considerations, the court found it imprudent to grant bail at this stage and directed that a pre-bail report be prepared to assess the social circumstances and risks before reconsidering the application.
Court Disposition
Bail application declined pending pre-bail report.
Orders
- The Probation Officer shall file a pre-bail report including the social background of the accused and his relationship with the victim's family.
- The defence may renew the bail application after the pre-bail report is filed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Eldoret
Criminal Appeal 115 of 2012 [if gte mso 9]><xml>
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REPUBLIC …................................................... PROSECUTOR/RESPONDENT
VERSUS
EDWIN KIPCHIRCHIR LAGAT .............................. ACCUSED/APPLICANT
RULING ON BOND
The application for bond was made by Mr. Chemoyai advocate on behalf of the accused soon after the plea was taken on 18th February, 2013.
Mr. Kabaka, State Counsel opposed the application stating that the witnesses the prosecution have lined up in their case are relatives of the accused and that the deceased man is a cousin to the accused. That therefore there was a likelihood that, if the accused is released on bond, would interfere with the witnesses. He further stated that the witnesses and family of the deceased live in one homestead.
In rejoinder, Mr. Chemoyai for the accused submitted that the contention by the prosecution that they are apprehensive of witness interference has not been substantiated.
Under Article 49 (1) (h) of the Constitution, Court will only decline to grant bail to an accused person if there are compelling reasons. With time, courts have spelt out what they consider are compelling reasons. One reason is the likelihood of interference with witnesses by the accused. This is the reasons the prosecution advances that the court should consider in not granting the bail. Their further submission is that the family of the victim and of the accused live in the same compound. He did not however expound how the latter affects the application herein.
Whereas these contentions may be true, it was imperative that they be put in their opposition in writing by way of filing an affidavit possibly from the investigating officer. In the absence of an affidavit, I would consider the opposition by the prosecution without basis.
However, it is pointless to release the accused into a dangerous environment. If his family lives in the same compound with that of the victim, the likelihood of re-igniting bad blood between the families is so real. This may lead to more offences being committed by either side.
In this regard, I would not find it prudent to grant the accused bail for now. I direct that the Probation Officer files a pre-bail report which should include the social background of the accused and his relationship with the family of the victim. Once this is filed, and depending on the report's outcome, the defence will be at liberty to renew its quest for bail.
DATED and DELIVERED at ELDORET this 19th day of March, 2013.
G. W. NGENYE – MACHARIA
JUDGE
In the presence of:
Mr. Omboto holding brief for Chemoyai for the Applicant/Accused
Mr. Omwega for the Respondent/State
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