[2014] KEHC 1611 (KLR)
The court found that there were no compelling reasons to deny bond to the accused persons. The allegations of possible interference with investigations were unsubstantiated, as investigations were not shown to be ongoing. The argument that the accused might abscond due to the severity of the sentence was not...
Source-derived case information.
- Citation
- [2014] KEHC 1611 (KLR)
- Parties
- Applicant: Republic; Defendant: Enock Nyandieka Bebeni; Defendant: Geoffrey Birundu Monari
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 14 & 22 of 2014
- Procedural Posture
- Criminal Murder / Ruling on Bond Application Pending Trial
- Outcome
- bond granted to both accused persons on specified terms
- Legal Topics
- Bail Pending Trial, Murder Charge, Compelling Reasons, Juvenile Accused, Surety Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Enock Nyandieka Bebeni
Defendant
Geoffrey Birundu Monari
Defendant
Procedural Posture
Criminal Murder / Ruling on Bond Application Pending Trial
Legal Issues
- 1 Whether the accused persons should be granted bond pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny bond under Article 49(1)(h) of the Constitution.
- 3 Whether the accused persons pose a risk of absconding, interfering with investigations, or endangering their own safety if released on bond.
Ratio Decidendi
The court found that there were no compelling reasons to deny bond to the accused persons. The allegations of possible interference with investigations were unsubstantiated, as investigations were not shown to be ongoing. The argument that the accused might abscond due to the severity of the sentence was not sufficient, as the Constitution contemplates bail even for capital offences. The court also considered the age and backgrounds of the accused, the support from their families, and the willingness of relatives to stand surety. The court exercised its discretion judiciously and granted bond on specified terms, finding no evidence that the accused posed a risk to the public, to...
Court Disposition
bond granted to both accused persons on specified terms
Orders
- Each accused person shall be released on their own bond of Kshs.500,000 with two sureties of Kshs.2,000,000 each, approved by the Deputy Registrar.
- Once released, the accused persons shall appear before the Deputy Registrar for mention every 30 days until the case is heard and determined or until further orders.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL MURDER NOS.14 AND 22 OF 2014
(CONSOLIDATED)
REPUBLIC...........................................................PROSECUTOR
VERSUS
ENOCK NYANDIEKA BEBENI
GEOFREY BIRUNDU MONARI..................................ACCUSED
RULING
1. By the consolidated information dated 25th February 2014, the two accused persons herein, Enock Nyandieka Bebeni and Geoffrey Birundu Monari are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are that “On the 20th day of January 2014 at Nyacheki Market in Nyamache District within Kisii County in the Republic of Kenya, jointly murdered Dennis Ogechi Mogata. They denied the charge and are awaiting trial.
2. In the meantime, they have mounted an application in which they seek to be released on bond pending trial pursuant to the provisions of Article 49 (1) (h) of the Constitution of Kenya 2010.
3. The application for bond in respect of the 1st accused is opposed vide the Replying affidavit sworn by No.47822 Cpl John Adharis of Nyangusu police station on 30th January 2014. He states that it would be unsafe to release the accused persons on bond because their own lives will be in danger as the situation on the ground is volatile. He also depones that if released the accused persons might interfere with investigations. The deponent also states at paragraph 11 of his affidavit that because of the severity of the sentence should the accused persons be eventually convicted, there is a great temptation for them to abscond or go into hiding if released on bond/bail pending trial. The application by the 2nd accused is not opposed as per paragraph 3 of the affidavit sworn by No.41925 Cpl Antony Musembi of Gucha CID Headquarters.
4. I have carefully considered the grounds put forward by the State in opposition to the application for bond. The allegation that the accused persons are likely to interfere with investigations cannot carry any weight in this matter because the investigations have not been shown to be still ongoing.
5. As regards the possible death sentence in case of a conviction, it is not lost to the court that in passing Article 49 (1) (h) of Kenya, the people of Kenya fully knew and understood that the offence of murder, which is now bailable, carries a maximum penalty of death. In my view therefore, the court has a duty to exercise its discretion in most judicious manner when deciding whether or not to grant bond and if so, on what terms. It is also not quite clear to the court from a reading of paragraph 7 of the Replying Affidavit in what way or manner the accused persons' life would be ind anger, and whether the situation as it obtained on 30th January 2014 still obtains todate.
6. The court has had occasion to carefully read the Pre-Bail Reports filed in court on 14th February 2014 with regard to Enock Nyandieka Bebeni and 19th February 2014 in respect of Geoffrey Birundu Monari. From those reports, Enock Nyandieka Bebeni is aged 17 years, having been born in 1997. Both his parents are alive. He dropped out of school at class 8 and now engages in brick making. His two uncles have promised to stand surety for him should the court deem it fit to grant him bond as recommended.
7. The second accused, Geoffrey Birundu Monari is aged 24 years. He dropped out of school at Form 3 and went into “boda boda” business. His mother is deceased while his father is ailing. His paternal grandfather is willing to stand surety for him if the court grants the application.
8. Upon careful consideration of all the circumstances surrounding this case, and in light of the contents of the Bail Reports, I am satisfied that there are no compelling reasons why the two accused persons may not be released on bond. Further, considering the age of the accused persons herein and what they own in terms of material wealth, I allow the bond application on the following terms:-
1. Each of the accused persons shall be released on their own bond of Kshs.500,000/= (Kenya Shillings five Hundred Thousand only) with 2 sureties of Kshs.2,000,000/= each (Kenya Shillings Two Million). The sureties shall be approved by the DR of this Honourable court.
2. Once released, the accused person shall appear before the DR of this Honourable Court for mention of their case once every 30 days until the case is heard and determined or until further orders of this Honourable Court.
3. In default of 2 above, the bond shall stand cancelled and the sureties put to account.
4. Mention on 01/09/2014.
9. Orders accordingly.
Delivered, dated and signed at Kisii in open court this 1st day of August, 2014
R.N. SITATI
JUDGE.
In the presence of:-
Mr. Majale for State
Mr. C.A. Okenye for Accused persons
Mr. Bibu - Court Assistant