[2015] KEHC 247 (KLR)
The court found that the prosecution failed to provide any compelling reasons to deny the accused persons their constitutional right to bond. The right to bond is fundamental and cannot be withheld in the absence of such reasons. The court emphasized that the failure of the prosecution to respond or provide a...
Source-derived case information.
- Citation
- [2015] KEHC 247 (KLR)
- Parties
- Respondent: Republic; Applicant: Elijah Magati Maina; Applicant: Agnes Nyaboke Maina
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 57 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- Bond granted to both accused persons.
- Judges
- CB Nagillah
- Legal Topics
- Bail and Bond, Murder Charge, Pretrial Release, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Elijah Magati Maina
Applicant
Agnes Nyaboke Maina
Applicant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused persons are entitled to bond pending trial for the offence of murder.
- 2 Whether the prosecution has provided compelling reasons to deny bond as required by the Constitution.
Ratio Decidendi
The court found that the prosecution failed to provide any compelling reasons to deny the accused persons their constitutional right to bond. The right to bond is fundamental and cannot be withheld in the absence of such reasons. The court emphasized that the failure of the prosecution to respond or provide a pre-bail assessment report does not vacate the judiciary's duty to rule on the bond application. Therefore, the accused persons are entitled to be released on bond on reasonable conditions as stipulated by the Constitution.
Court Disposition
Bond granted to both accused persons.
Orders
- The two accused persons are released on personal bond of Kshs 500,000 each with one surety each of similar amount, to be approved by the Deputy Registrar of the High Court.
- Upon release, the accused persons must attend court every month for mention of their case until hearing and determination or further direction of the court.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
CRIMINAL CASE NO 57 OF 2015
REPUBLIC…………………...……................................………………….PROSECUTOR
=VERSUS=
ELIJAH MAGATI MAINA……………..................................…….………..1ST ACCUSED
AGNES NYABOKE MAINA………….................................………..……..2ND ACCUSED
RULING
On 9th March 2015 Mr. Ondari for the two accused persons applied for bond for the two. Since then, the state which sought several adjournments to file their application to show cause why the two accused persons shouldn’t be released on bond has not filed its response.
Five months down the line the state has yet to file their response. There was also great effort to get the probation officer to bring to court a pre-bail assessment report to guide the court. Todate also, there has been no pre-bail assessment report.
The two accused persons, Elijah Magati Maina and Agnes Nyaboke Maina, were charged for murder contrary to Section 203 as read with Section 204 of Penal Code. The particulars thereof being that on the 20th day of January 2015 at Kenyerere Village in Masaba North Sub-County, within Nyamira County, jointly with others not before court murdered: Christopher Maina Muma.
The Constitution Article 49 (I) (h) stipulates, inter alia that an arrested person has the right to be released on bond or bail on reasonable conditions, pending a charge on trial, unless there are compelling reasons not to be released.
As stated earlier, the state has not upto now filed any compelling reasons to deny the two accused persons their constitutional right to bond.
The Court’s Judiciary duty to rule on the bond application is not vacated hereby because the prosecutions fails and has failed to state its side of case number.
The court will proceed, in the absence of this response to rule on the matter. The constitutional importance of the right to bond by the arrested person is so important that response or no response notwithstanding.
Accordingly, the two accused persons are hereby released on personal bond of Kshs 500,000 each with one surety each of similar amount, the same to be approved by the Deputy Registrar of the High Court.
Upon their release the said accused persons to attend court every month for mention of their case until the hearing and determination of their case or further direction of the court.
Any one default, the bonds will be cancelled forthwith and the sureties made to account
The first such mention to be on 12th November 2015
It is so ordered
This case applies Mutatis Mundantis to Agnes Nyaboke Maina.
Dated and delivered at Nyamira on this 12th day of October, 2015
C. B. NAGILLAH
JUDGE
In the presence of:
Ondari (absent) for the applicant
Malesi for the respondent
Mercy – Court clerk