[2015] KEHC 3809 (KLR)
The court held that while the accused's safety is important, it cannot be used as a compelling reason to deny bail when the accused himself seeks release and is aware of the potential risks. The constitutional right to bail prevails unless there are compelling reasons to deny it, and the prosecution's concerns about...
Source-derived case information.
- Citation
- [2015] KEHC 3809 (KLR)
- Parties
- Applicant: Republic; Respondent: Edwin Mwangi Ndung'u
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 22 of 2014
- Procedural Posture
- Bail Application / Ruling on Bail Application Prior to Commencement of Trial
- Outcome
- application for bail allowed
- Judges
- DW Mbuteti
- Legal Topics
- Bail Pending Trial, 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
Edwin Mwangi Ndung'u
Respondent
Procedural Posture
Bail Application / Ruling on Bail Application Prior to Commencement of Trial
Legal Issues
- 1 Whether the accused should be granted bail pending trial for the offence of murder.
- 2 Whether the safety concerns raised by the prosecution constitute a compelling reason to deny bail.
Ratio Decidendi
The court held that while the accused's safety is important, it cannot be used as a compelling reason to deny bail when the accused himself seeks release and is aware of the potential risks. The constitutional right to bail prevails unless there are compelling reasons to deny it, and the prosecution's concerns about the accused's safety do not meet this threshold. The court emphasized that any conditions for bail must be reasonable and that the accused is responsible for his own safety upon release. Consequently, the application for bail was allowed with conditions set for recognizance and surety.
Court Disposition
application for bail allowed
Orders
- The accused shall be admitted to bail upon his own cognizance in the sum of KShs 300,000 plus one surety of like sum.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA T MURANG’A
CRIMINAL CASE NO 22 OF 2014
REPUBLIC………………………….………….PROSECUTOR
VERSUS
EDWIN MWANGI NDUNG’U…………..…………….. ACCUSED
R U L I N G
1. The accused herein, Edwin Mwangi Ndung'u, is charged with murder contrary to section 203 as read with section 204 of the Penal Code. It is alleged in the information dated 04/09/2014 that on 01/09/2014 at Mitanduguini village of Gatanga Sub-county within Murang’a County he murdered one Serah Wambui Njoroge. He pleaded not guilty on 06/10/2014. His trial was set for 28/01/2015 but could not commence.
2. The Accused had in the meantime applied by notice of motion dated13/10/2014 to be admitted to bail pending his trial. That application is the subject of this ruling. The Republic has opposed the application by a replying affidavit filed on 06/11/2014. The ground for objection is that if the Accused is released on bail he may be harmed by the Deceased’s relatives and the local community as they are "still furious" with him. It is pointed out that he was almost lynched by a mob after the offence was committed and had to be rescued by the police.
3. Bail is now a constitutional right for all criminal offences and will be denied only for compelling reason. Also by constitutional edict, any condition imposed for such bail must be reasonable. See Article 49(1) (h) of the Constitution of Kenya ,2010.
4. No doubt the Accused’s safety is important; but he sought bail himself, and will be aware of any danger to himself should he go anywhere near the Deceased’s family members. He must look out for his own safety. But his safety cannot, in the circumstances of this case, be a compelling reason to deny him bail that he has himself sought.
5. In the result I will allow the application. The Accused shall be admitted to bail upon his own cognizance in the sum of KShs 300,00/00 plus one surety of like sum. It is so ordered.
DATED, SIGNED AT MURANG’A THIS 16TH DAY OF JULY 2015
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 17TH DAY OF JULY 2015