[2015] KEHC 333 (KLR)
The court found that the prosecution's opposition to bail was speculative and unsupported by evidence. There was no demonstration that the applicant was likely to abscond or interfere with witnesses. The mere severity of the potential sentence and the fact that the applicant had been supplied with witness statements...
Source-derived case information.
- Citation
- [2015] KEHC 333 (KLR)
- Parties
- Respondent: Republic; Applicant: Faith Lemomo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 70 of 2014
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- bail_granted
- Judges
- LN Mutende, P Nyamweya
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Right to Bail, Presumption of Innocence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Faith Lemomo
Applicant
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the applicant bail, such as risk of absconding or interference with witnesses.
Ratio Decidendi
The court found that the prosecution's opposition to bail was speculative and unsupported by evidence. There was no demonstration that the applicant was likely to abscond or interfere with witnesses. The mere severity of the potential sentence and the fact that the applicant had been supplied with witness statements did not amount to compelling reasons to deny bail. The court emphasized that denying bail on unfounded assertions would violate the applicant's constitutional right to bail. Consequently, the applicant was entitled to be released on bond pending trial.
Court Disposition
bail_granted
Orders
- The applicant is released on bond of Kshs. 1,000,000 with a surety in a like sum.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 70 OF 2014
REPUBLIC……………………………………....PROSECUTOR
VERSUS
FAITH LEMOMO............................................................ACCUSED
R U L I N G
1. By an application dated 4th February, 2015, Faith Lemomohereinafter “the Applicant/Accused” seeks to be released on bail pending trial. The application is premised on grounds that the Applicant has been in remand for a long period which constitutes an infringement of her constitutional right to bail; Article 49(1)(h)of the Constitutionstems from Article 50(2)(a)which provides that an accused person has the right to be presumed innocent until proven guilty; the Applicant is a Kenyan Citizen with strong ties to the community and is not a flight risk.
2. The Applicant swore an affidavit where she deponed that she is married with five (5) children of tender years aged between twelve (12) and two (2) years; she has high blood pressure, her health has been deteriorating; she is the sole breadwinner of her family as her husband has another family that he takes care of.
3. In response thereto, the State through No. 62318 P C Meshack Mumoopposed the application on grounds that: If convicted the applicant will face a death sentence; due to the severity of sentence to be imposed the applicant will be tempted to abscond; and that the applicant has been supplied with statements which indicate particulars of witnesses therefore she may interfere with them.
4. The Applicant’s Advocate John Ndungwa Kimeufiled a supplementary affidavit where he deposed that the applicant is not a flight risk and she will not interfere with witnesses.
5. The Applicant is charged with the offence of murder that is bailable unless there are compelling reasons to have the accused incarcerated. The paramount consideration in granting bail is whether the accused person will turn up for trial. However, there are other considerations like interference with witnesses that the court must take into account. The party who makes such an allegations must therefore demonstrate that indeed there is an intention on the part of the accused person to do so.
6. In his affidavit the Investigation Officer stated thus:
“The prosecution has supplied the Applicant with the relevant statement as required indicating the witness particulars thus they may interfere with witnesses.”(Emphasis mine).
7. The averment made clearly indicate that the deponent was not certain. He was speculating as to what may happen. There is nothing to suggest that the witnesses have a relationship with the Applicant; or that she may threaten or intimidate them. Denying her bail on unfounded assertions may violate her right to bail.
8. From the foregoing it is apparent that there is no compelling reason why the Applicant should be denied bail pending trial. Consequently, she may be released onbond of Kshs. 1,000,000/=with a surety in a like sum.
9. It is so ordered.
Datedat Kituithis 16thday of November,2015.
L. N. MUTENDE
JUDGE
Dated, Signed and Deliveredat Machakos this 2ndday ofDecember,2015.
P. NYAMWEYA
JUDGE