[2015] KEHC 2933 (KLR)
The court found that while the right to bond is constitutional, it is not absolute and may be limited by compelling reasons. For Evans Mogaka Anariko, the court accepted the prosecution's argument that he was likely to abscond, given the difficulty in apprehending him, and that there was a risk of witness tampering....
Source-derived case information.
- Citation
- [2015] KEHC 2933 (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 108 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 are entitled to bond pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny bond to either accused person.
Ratio Decidendi
The court found that while the right to bond is constitutional, it is not absolute and may be limited by compelling reasons. For Evans Mogaka Anariko, the court accepted the prosecution's argument that he was likely to abscond, given the difficulty in apprehending him, and that there was a risk of witness tampering. Consequently, bond was denied for him, with liberty to reapply at a later stage. For Kepha Bisase Salemu, the court found no compelling reasons to deny bond, as the pre-bail assessment was positive and there was no evidence of risk of absconding or interference with witnesses. Therefore, he was granted bond on specified terms.
Court Disposition
Bond granted to Kepha Bisase Salemu; bond denied to Evans Mogaka Anariko.
Orders
- Bond is denied to Evans Mogaka Anariko alias SUPER. He may reapply at a later stage.
- Bond is granted to Kepha Bisase Salemu alias Zacharia. He is released on personal bond of KES 1,000,000 with two sureties of the same amount, to be approved by the Deputy Registrar.
Full Case Text
Judgment text and source record
27 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
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.