[2017] KEHC 8670 (KLR)
The court found that the pre-bail report presented was incomplete and not useful for determining the bail application. The report failed to obtain the views of the victim's family and contained contradictions regarding the community's attitude and the recommendation for continued custody. The court held that, in...
Source-derived case information.
- Citation
- [2017] KEHC 8670 (KLR)
- Parties
- Respondent: Republic; Applicant: Eugine Bargetuny
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 105 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- Further directions issued; bail application deferred pending comprehensive pre-bail report.
- Judges
- J Wakiaga
- Legal Topics
- Bail Pending Trial, Murder Charge, Pre Bail Report, Victim Protection, Community Attitude
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Eugine Bargetuny
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the applicant should be released on bond/bail pending trial for the offence of murder.
- 2 Whether the pre-bail report presented is adequate and reliable for the court's determination.
- 3 Whether the views of the victim's family and the community have been properly considered as required by law.
Ratio Decidendi
The court found that the pre-bail report presented was incomplete and not useful for determining the bail application. The report failed to obtain the views of the victim's family and contained contradictions regarding the community's attitude and the recommendation for continued custody. The court held that, in compliance with the Victim Protection Act and the need for a reliable pre-bail report, it could not make a decision on the bail application based on the current report. The court therefore ordered the probation office to prepare and file a further comprehensive report by a different officer within 14 days, deferring the determination of the bail application until such report is...
Court Disposition
Further directions issued; bail application deferred pending comprehensive pre-bail report.
Orders
- The probation office is ordered to present a further comprehensive pre-bail report prepared by another officer within 14 days.
- Determination of the bail application is deferred until the new report is filed.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE 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. The applicant EUGINE BARGETUNY is charged with the offence of murder contrary to Section 203 as read with Section 204of the Penal Code the particulars of which were that on the 25th day of October, 2015 at Tassia Estate in Embakasi Division within Nairobi County murdered Stephen Okoth.
2. He pleaded not guilty and by an application dated 13/10/2016 applied to be released on bond/bail pending trial which application was supported by his annexed affidavit allegedly sworn before Erick Ochieng, Advocate on 13/10/2016 in which it was deponed that the applicant has a permanent residence in Dina village in Webuye within Bungoma County where he resides with his parent namely Stella Nafuna Wenani and further that he is a young man who led a meaningful life and engaged in income generating activities in the form of A barber shop and should therefore be released on bond to enable him continue fending for himself.
3. It was deponed that the intended witnesses had been disclosed in the committal bundle served upon the accused and he undertook not to influence or interfere with them in anyway having been in custody since October, 2015.
PRE-BAIL REPORT
4. To assist the court in determination of the application, I ordered for pre-bail report which has been filed and in which it was stated that at the time of the offence the accused was employed as a beautician by his Aunt and upon his arrest the accused sister took away all his belongings from his rental house in Tassia Estate. It was stated that the victim was not known to the accused and therefore the same might not be a threat to other parties involved in the case.
5. On victim impact report, the officer was unable to get any response since the contact given allegedly went to a recipient who did not know or have any connection with the matter. The community from where the offence was committed is alleged to had been aloof and were unwilling to engage them in police case and were unaware of the case.
6. From the report it was concluded that the accused parents sought his release on bond and the accused who has no history of anti-social behavior has very supportive relatives willing to vouch for his court attendance. However in the recommendations, the probation officer states that the situation on the ground are more overwhelming and call for the accused remaining in custody for his own protection which I find contradictory to the attitude of the community as stated in the report.
7. The Victim Protection Act now requires the court to get the view of the victims before any decision affecting them is reached at by the court. In view of the fact that the probation officer did not contact the family members of the deceased and further having pointed out the contradictions between the reports finding on the community attitude and the recommendation. I find and hold that the pre-bail report herein as presented is incomplete and not useful to court.
8. The probation office is hereby ordered to present a further comprehensive report prepared by another officer other than ADIKA MM to court within the next 14 days from the date herein.
DATED, SIGNED and DELIVERED at Nairobi this 2nd day of March, 2017
…………………………….
J. WAKIAGA
JUDGE
In the presence of:-
Mrs. Kinoti for the State
Miss Nyang for Mathenge for the Accused
Accused present
Tabitha court clerk