[2016] KEHC 6043 (KLR)
The court found that the accused had been in custody for six years without the prosecution concluding its case, and that the initial reason for denying bail—fear of revenge attacks from the victim's family—was no longer compelling due to the passage of time. The court held that continued detention would be unjust...
Source-derived case information.
- Citation
- [2016] KEHC 6043 (KLR)
- Parties
- Applicant: Republic; Defendant: Erick Michira Bisieri
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 99 of 2010
- Procedural Posture
- Criminal Murder / Ruling on Renewed Bail Application Pending Trial
- Outcome
- Application for bail pending trial allowed; accused to be released on bond with conditions.
- Judges
- WA Okwany
- Legal Topics
- Bail Pending Trial, Murder Charge, Pre Bail Assessment, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Erick Michira Bisieri
Defendant
Procedural Posture
Criminal Murder / Ruling on Renewed Bail Application Pending Trial
Legal Issues
- 1 Whether the accused should be granted bail pending trial after a prolonged period in custody.
- 2 Whether the circumstances that led to the initial denial of bail have changed sufficiently to warrant a review.
Ratio Decidendi
The court found that the accused had been in custody for six years without the prosecution concluding its case, and that the initial reason for denying bail—fear of revenge attacks from the victim's family—was no longer compelling due to the passage of time. The court held that continued detention would be unjust and that the accused's right to bail should be upheld in the absence of any current compelling reasons to deny it. The court therefore reviewed and set aside the earlier order denying bail, granting the accused release on bond with specified terms.
Court Disposition
Application for bail pending trial allowed; accused to be released on bond with conditions.
Orders
- The accused may be released on bond upon executing his own personal bond of Kshs. 500,000 with two sureties of a similar amount.
- Once released, 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
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MURDER NO. 99 OF 2010
REPUBLIC………………………………………………….PROSECUTOR
VERSUS
ERICK MICHIRA BISIERI……………………………………… ACCUSED
RULING
The accused person herein, was first arraigned in court on 1st November, 2010 on the charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. It is alleged that on 15th October, 2010 at Kegochi Sub-location in Nyamache District within Kisii County, jointly with others not before the court murdered JOHN ABUGA ONWONGA on 22nd November, 2010, the accused pleaded not guilty to the said charge of murder.
On 6th June, 2013, the accused, through his advocate Mr. Ochwangi, applied to be released on bond pending his trial and the state, through the sworn replying affidavit of one No. 83640 corporal Olivia Ledonyo of Ogembo Police Station stated that she had no compelling reasons to have the accused person denied bail.
In a ruling delivered on 20th March, 2014, this court (differently Constituted) declined to grant the accused person bond on the basis of the contents of a pre-bail assessment report to the effect that the victim’s family were not receptive to the accused being granted bond and therefore there was apprehension that the life of the accused would be in danger from possible revenge attacks from the victim’s family if he got out on bond. The case was then listed for hearing and so far 5 witnesses have already testified, out of the 7 witnesses that their prosecution had in the opening statement indicated that they would be calling in this case.
On 16th March, 2016, the accused renewed his application to be released on bond pending the further hearing of his case citing the long period of time it had taken the prosecution to finalize their case against him.
Mr. Otieno appearing for the state did not oppose the accused’s renewed quest to be released on bond.
I have considered the fact that the accused person has been in custody since 2010 when this matter was first filed in court. To-date, 6 years later, the prosecution has not finalized its case and there is no knowing when this case will finally come to an end.
I am certain that when this court (differently constituted) declined to grant the accused person bail on 20th March, 2014, it did not envisage a scenario where the trial would take this long to be concluded.
I am under the above circumstances of the considered view that this is a suitable case for a review of the earlier decision to deny the accused bail. In any event, I opine that any bitter feelings that the victim’s family may have had against the accused or anyone suspected of the murder must have subsided considerably by now.
It is for the above reasons that I allow the accused’s application to be released on bond pending the conclusion of his trial on the following terms:
The accused may be released on bond upon executing his own personal bond of Kshs. 500,000/= with 2 sureties of a similar amount.
Once he is released on bond, he 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.
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 30th day of March, 2016.
W.A. OKWANY
JUDGE
In the presence of:
Mochama for the State
Magara for Ochwangi for Accused
Omwoyo: court clerk