[2010] KEHC 247 (KLR)
The court held that persons charged with capital offences, including murder, are not entitled to bail due to the existence of compelling reasons as provided under Section 49(1)(h) of the Constitution and Section 123 of the Criminal Procedure Code. The seriousness of the offence, the potential danger to the accused...
Source-derived case information.
- Citation
- [2010] KEHC 247 (KLR)
- Parties
- Applicant: Republic; Defendant: Francis Kariko Kimani
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 100 of 2010
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- Bail denied; accused to remain in custody pending trial.
- Judges
- MJA Emukule
- Legal Topics
- Bail Pending Trial, Capital Offences, Compelling Circumstances, Constitutional Rights, Social Contract, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Francis Kariko Kimani
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused person charged with a capital offence is entitled to bail pending trial under the Constitution and Criminal Procedure Code.
- 2 Whether there are compelling reasons to deny bail to the accused person in this case.
Ratio Decidendi
The court held that persons charged with capital offences, including murder, are not entitled to bail due to the existence of compelling reasons as provided under Section 49(1)(h) of the Constitution and Section 123 of the Criminal Procedure Code. The seriousness of the offence, the potential danger to the accused and society, and the breach of the social contract by the accused were considered compelling reasons to deny bail. The court further emphasized that applications invoking epistolary jurisdiction in such grave matters should be made formally in writing to aid in the development of jurisprudence under the new Constitution. Consequently, the accused was ordered to remain in custody...
Court Disposition
Bail denied; accused to remain in custody pending trial.
Orders
- The application for bail is declined.
- The accused shall be held in custody pending the hearing and determination of his case.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 100 OF 2010
REPUBLIC…………………………………………………PROSECUTOR
VERSUS
FRANCIS KARIKO KIMANI……....………………………………ACCUSED
RULING
The Accused's counsel has applied to this court for the release of the accused on cash bail pending the trial of the accused. The accused's counsel has relied upon this court's epistolary jurisdiction vested to it under Section 22 of the Constitution in that the court should do justice and not rely on technicalities. Whereas this is order in simple cases, the matter is different where the offences are grave and the release of an accused person on bail may be dangerous to the accused himself and may generally lead to serious breaches of the peace.
Section 49(1)(h) of the Constitution requires that an accused person charged with an offence punishable by imprisonment for a term of not less than six months may be released on bond/bail unless there are compelling circumstances why he should not be released.
The repealed Constitution Section 72(5) prohibited the grant of bail to any person charged with the offence of murder. Section 123 of the Criminal Procedure Code, clearly states that no accused charged with the capital offences of murder, treason, robbery with violence and attempted robbery with violence may be released on bond/bail. To this list I would add persons charged with mass murder - acts of terrorism.
These are in my opinion compelling reasons within the provisions of Section 49(1)(h) of the Constitution why an accused person facing charges of an offence of a capital nature should not be released on bond/bail.
Further, an accused person being a member of society has breached his social contract by committing the serious offence. Society demands that while he is under suspicion, he must be kept aside until that suspicion is removed.
Finally, whilst epistolary jurisdiction developed in countries such as India is welcome it usually concerns major issues such as effects of industrialization on environment and today climate change, and are determined by the Supreme Court upon investigation of the issues raised in the complaint. That jurisdiction on matters of capital offences should be used sparingly and I would direct that it be done formally in writing as required under the Criminal Procedure Code. This will help the formal development of jurisprudence under the new Constitution.
For those reasons I decline to release the accused on bail, and direct that he be held in custody pending the hearing and determination of his case.
Dated, signed and delivered at Nakuru this 8th day of October, 2010
M. J. ANYARA EMUKULE
JUDGE