[2016] KEHC 4792 (KLR)
The court found that the initial reasons for denying bond to the 2nd and 3rd accused—public hostility and inability to raise security—may no longer be compelling, as over a year had passed since the alleged offence and tempers may have cooled. Furthermore, the court noted that the 4th accused, facing the same...
Source-derived case information.
- Citation
- [2016] KEHC 4792 (KLR)
- Parties
- Applicant: Republic; Defendant: Enock Nyabuto; Defendant: John Ochwari Obae; Defendant: Richard Ombiro Resi; Defendant: Alloys Ogeo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 23 of 2014
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- Bond granted to 2nd and 3rd accused on specified terms.
- Judges
- WA Okwany
- Legal Topics
- Bail and Bond, Murder Charges, Pretrial Release, Discrimination in Bail, Public Safety, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Enock Nyabuto
Defendant
John Ochwari Obae
Defendant
Richard Ombiro Resi
Defendant
Alloys Ogeo
Defendant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the 2nd and 3rd accused persons should be granted bond pending trial.
- 2 Whether denying bond to some accused while granting it to a co-accused facing the same charge is discriminatory.
- 3 Whether the security and safety concerns previously cited still justify denial of bond.
Ratio Decidendi
The court found that the initial reasons for denying bond to the 2nd and 3rd accused—public hostility and inability to raise security—may no longer be compelling, as over a year had passed since the alleged offence and tempers may have cooled. Furthermore, the court noted that the 4th accused, facing the same charge, had already been granted bond, and to continue denying bond to the 2nd and 3rd accused would be discriminatory in the absence of current, specific risks. The court therefore exercised its discretion to grant bond to the 2nd and 3rd accused on terms similar to those previously set for the 4th accused, subject to compliance with court requirements.
Court Disposition
Bond granted to 2nd and 3rd accused on specified terms.
Orders
- Each accused may be released upon executing their own personal bond of Kshs. 500,000 with 2 sureties of a similar amount.
- Once released on bond, the accused shall appear in court whenever required until the case is heard and determined or until further orders of the court.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL CASE NO. 23 OF 2014
REPUBLIC..............................................................PROSECUTOR
VERSUS
ENOCK NYABUTO...................................................1ST ACCUSED
JOHN OCHWARI OBAE........................................2ND ACCUSED
RICHARD OMBIRO RESI........................................3RD ACCUSED
ALLOYS OGEO.........................................................4TH ACCUSED
RULING
1. By a ruling delivered on 16th February, 2015, this court, (differently constituted) declined to allow the application by 2nd and 3rd accused persons herein to be released on bond pending their trial.
2. The accused persons herein face the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code.
3. The reasons advanced by the court for denying the 2nd and 3rd accused bond were that there was fear that the members of their community could lynch them and that their family members were unable to raise the requisite security.
4. I note that it is now over 1 year since the offence in question was alleged to have been committed. It is possible that the tempers of the members of the public could have cooled down by now.
5. I also note that the 2nd and 3rd accuseds’ co-accused, the 4th accused herein ALLOYS OGEO, was on 20th November, 2014 granted bond pending his trial. To my mind, it will be discriminatory to allow the application for bond in respect to a co-accused and deny another accused bond when they face the same charge, but as I have noted, the court at the time of making the ruling in regard of the 2nd and 3rd accused noted that it was not safe for them to be released given the hostility of members of the public towards them then.
6. For the above reasons, I allow the 2nd and 3rd accused application for bond and order that:
a.Each accused may be released upon executing their own personal bond of Kshs. 500,000/= with 2 sureties of a similar amount.
b.Once they are released on bond, they shall appear in court whenever he is required to do so by the Honourable Court until the case is heard and determined or until further orders of this Honourable Court.
c.In default of (2) above, the bond shall be cancelled immediately and the sureties taken to account.
Delivered, dated and signed in at Kisii on 9th day of, May, 2016
W.A. OKWANY
JUDGE
In the presence of:
Otieno for the State
Mr. Magara for Sagwe for the Accused
Omwoyo court clerk