[2015] KEHC 4249 (KLR)
The court found that while both accused persons have a constitutional right to bond, this right is subject to limitation where compelling reasons exist. For Evans Mogaka Anariko, the court was persuaded by the prosecution's affidavit that he was likely to abscond, given the difficulty in apprehending him, and that...
Source-derived case information.
- Citation
- [2015] KEHC 4249 (KLR)
- Parties
- Applicant: Republic; Defendant: Evans Mogaka Anariko alias Super; Defendant: Kepha Bisase Salemu alias Zacharia
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case Case108 of 2013
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- Bond granted to Kepha Bisase Salemu; bond denied to Evans Mogaka Anariko.
- Judges
- CB Nagillah
- Legal Topics
- Bail and Bond, Compelling Reasons, Pre Bail Assessment, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Evans Mogaka Anariko alias Super
Defendant
Kepha Bisase Salemu alias Zacharia
Defendant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused persons should be granted bond pending trial for murder.
- 2 Whether there are compelling reasons to deny bond to either accused person.
Ratio Decidendi
The court found that while both accused persons have a constitutional right to bond, this right is subject to limitation where compelling reasons exist. For Evans Mogaka Anariko, the court was persuaded by the prosecution's affidavit that he was likely to abscond, given the difficulty in apprehending him, and that he might interfere with witnesses. The pre-bail assessment report was positive, but the victim's family opposed his release. Balancing these factors, the court denied bond to Evans Mogaka Anariko but allowed for a future re-application. For Kepha Bisase Salemu, there were no compelling reasons advanced against him, and the pre-bail assessment report was not negative....
Court Disposition
Bond granted to Kepha Bisase Salemu; bond denied to Evans Mogaka Anariko.
Orders
- Kepha Bisase Salemu is released on personal bond of KES 1,000,000 with two sureties of the same amount, to be approved by the Deputy Registrar.
- Upon release, Kepha Bisase Salemu must attend court for mention after 30 days and subsequently until determination of the case or further orders.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 108 OF 2013
REPUBLIC………………………………………..………………………PROSECUTOR
VERSUS
EVANS MOGA ANARIKO alias SUPER …….....………………..…1ST ACCUSED
KEPHA BISASE SALEMU……………………….…………………..2ND ACCUSED
RULING
This is an application for bond by; 1, Kepha Bisase Salemu alias Zacharia 2, Evans Mogaka Anariko alias SUPER, being represented by C.A. Okenye advocate. The two were charged with murder, contrary to section 203 as read with 204 of the Penal code. The particulars thereof are that on the 24th day of January, 2012 at Kerema village in Nyamira District within Nyamira county in the Republic of Kenya, jointly with another before court murdered JOASH MONYENYE MESA. They denied the charge and the court entered a plea of NOT GUILTY. They now apply for bond pending the determination of their case.
The accused persons are aware of their right to bond/bail being a constitutional one. However, be that as it may, that right is not absolute one. It is circumscribed if there are compelling reasons to deny them bond.
Evans Mogaka Anariko- 1st accused person.
In the affidavit sworn on 16th day of December, 2014. The deponent of that affidavit states in paragraphs 3, 4, 5 and 6 thereof that the second accused person i.e. Evans Mogaka Anariko alias SUPER that he is likely to abscond as it took a very long time and efforts to trace and apprehend him- about one year. Further, the 2nd accused is likely to tamper with the witnesses if released.
The pre-bail assessment report on the 2nd accused filed on 23rd February, 2015, however appears positive on the 2nd accused person. Some of the community members, being contacted indicated their willingness to accept him if granted bond. The victim’s family however, were not willing to support the issue of bond to the 2nd accused person.
The court has to balance between the rights accorded the accused person and the rights of the victims. Subject to that balance, the court for sufficient cause, will take the direction it thinks is right in the circumstances.
Accordingly, the court will deny bond to the 2nd accused in the light of reasons above stated. He is a liberty to re-apply at some later stage, the court will consider the reviewed application with an open mind.
On Kepha Bisase Salemu, there are compelling reasons to deny bond. The affidavit earlier referred to, is reticent on the 1st accused person. The pre-bail assessment report is equally positive about him, at any rate, it is not negative on him being released on bond.
Accordingly, this court grants the 2nd accused bond and he is therefore released on personal bond of kshs. 1,000,000 with two sureties of the same amount, the same to be approved by the Deputy Registrar of this court.
Upon his release, he will be expected to attend court for mention of his case after 30 days until the determination of his case or further court orders. The first such mention to be on 29th June, 2015. Any one default, the bond shall be cancelled forthwith and sureties made to account.
It is so ordered.
Dated and delivered at Kisii this 12th day of June 2015.
HON. C.B. NAGILLAH
JUDGE
In the presence of:-
Sagwe holding brief for Otenye for the applicants.
Mbelete for the respondent
Samuel Omuga - Court Clerk.