Republic v Eugine Bargetuny [2017] KEHC 6102 (KLR)
- Citation
- [2017] KEHC 6102 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- J Wakiaga
- Case number
- Criminal Case 105 of 2015
- Language
- English
More details
- Court
- High Court
- Panel
- J Wakiaga
- Case number
- Criminal Case 105 of 2015
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the prosecution failed to provide compelling reasons or evidence to justify denying the accused bail. There was no proof that the accused knew the prosecution witnesses or that he was likely to interfere with them. The prosecution did not specify the nature of the alleged interference or the relationship between the accused and the witnesses, nor did it indicate any efforts taken to prevent such interference. Consequently, the accused's constitutional right to bail could not be curtailed on the basis of unsupported allegations.
Court disposition
Application for bond allowed; accused granted bail.
Orders
- The accused shall be released on bond of Kshs.1,000,000 with one surety of similar amount.
- In the alternative, the accused may be released on cash bail of Kshs.500,000.
- The accused shall not, during the period of his trial, make contact in any manner or form whatsoever with any of the prosecution witnesses.
02
Material facts
Parties
Republic
Respondent Counsel: Miss NjugunaEugine Bargetuny
Applicant Counsel: Mr. MathengeAmounts and remedies
- Bond Amount: KES 1,000,000
- Cash Bail Alternative: KES 500,000
03
Procedural history
Posture
Criminal Case / Ruling on Bail Application
04
Questions and positions
Legal issues
- 01
Whether the prosecution has provided compelling reasons to deny the accused bail.
- 02
Whether the accused is likely to interfere with prosecution witnesses if released on bond.
Party arguments
- Applicant
- The defence argued that there was no evidence submitted by the prosecution to show that the accused had interfered or was likely to interfere with witnesses. They contended that the accused's constitutional right to bail should not be curtailed without compelling reasons.
- Respondent
- The prosecution submitted that the accused was known to the prosecution witnesses and was therefore likely to interfere with them if released on bond. However, no specific evidence or details of such interference were provided.
05
Court’s reasoning
Legal principles
- 01
Article 49(1)(h) of the Constitution of Kenya; Victim Protection Act
The prosecution must provide compelling reasons, supported by evidence, to deny an accused person the constitutional right to bail, particularly where the ground is potential interference with witnesses.
- 02
Judicial precedent and statutory interpretation
The prosecution must specify the nature of the alleged interference and the relationship between the accused and the witnesses, and indicate efforts taken to prevent such interference.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the prosecution failed to provide compelling reasons or evidence to justify denying the accused bail. There was no proof that the accused knew the prosecution witnesses or that he was likely to interfere with them. The prosecution did not specify the nature of the alleged interference or the relationship between the accused and the witnesses, nor did it indicate any efforts taken to prevent such interference. Consequently, the accused's constitutional right to bail could not be curtailed on the basis of unsupported allegations.
Obiter and limits
- The court noted that the family of the deceased did not participate in the pre-bail report process due to the pain of their loss, but this did not affect the legal threshold for denying bail.
- It is trite law that the prosecution must meet the required standard of proof on a balance of probability when seeking to deny bail on grounds of witness interference.
Court disposition
Application for bond allowed; accused granted bail.
- The accused shall be released on bond of Kshs.1,000,000 with one surety of similar amount.
- In the alternative, the accused may be released on cash bail of Kshs.500,000.
- The accused shall not, during the period of his trial, make contact in any manner or form whatsoever with any of the prosecution witnesses.
Source and reliance status
High Court
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Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
HIGH COURT CRIMINAL CASE NO. 105 OF 2015
REPUBLIC ……………………………………...PROSECUTOR
VERSUS
EUGINE BARGETUNY……..…....……………………ACCUSED
RULING
1. By a ruling dated 2/3/2017 I ordered for a further comprehensive pre-bail report on the accused person’s suitably to be released on bond which has now been filed dated 3/4/2017.
2. In the said report it was indicated that efforts to interview the deceased family in compliance with the provisions of Victim Protection Act was not possible since they did not avail themselves for interview on the grounds that the death of the deceased was a painful experience that they had wished away to enable them to heal.
3. From the submissions by the prosecution it was stated that the prosecution witnesses were known to the accused and he was therefore likely to interfere with them. On behalf of the defence it was submitted that there was no evidence submitted by the prosecution of interference with witnesses.
4. It is trite law that where the only compelling evidence advanced by the prosecution to deny the accused person his/her constitutional right to bond is the possibility of interfering with witnesses, the prosecution must state the nature of the alleged interference and the relationship between the accused and the said witnesses. It is also required that the prosecution must state efforts taken to stop the said interference.
5. It is clear that the prosecution has not proved to the required standard on a balance of probability that if released on bond the accused is likely to interfere with witnesses as those witnesses have not been mentioned, there is further no evidence tendered to confirm that the prosecution witnesses are known to the accused person.
6. I therefore find and hold that the prosecution has failed to submit compelling reasons to enable me deny the accused his constitutional right to bail and therefore allow the application for bond dated 13/10/2016 and order that the accused be released on bond on the following terms:-
a) Bond of Kshs.1,000,000/- with one surety of similar amount.
b)In the alternative the accused may be released on cash bail of Kshs.500,000/-
c)The accused shall not during the period of his trial make contact in any manner or form whatsoever with any of the prosecution witnesses.
DATED, SIGNED and DELIVERED at Nairobi this 26th day of April, 2017.
…………………………………
J. WAKIAGA
JUDGE
In the presence of:-
Miss Njuguna for the State
Mr. Mathenge for the accused
Accused present
Tabitha court clerk
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