[2013] KEHC 1083 (KLR)
The court found that the prosecution failed to demonstrate compelling reasons to deny the accused bail. The mere absence of a permanent residence does not automatically mean the accused will abscond. The court emphasized that there must be sufficient and specific reasons to justify the denial of bail. Since the...
Source-derived case information.
- Citation
- [2013] KEHC 1083 (KLR)
- Parties
- Applicant: Francis Makori Ombati; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 75 of 2013
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- bail granted with conditions
- Judges
- CC Kipkorir
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Right to Fair Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Makori Ombati
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under the Constitution.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail.
- 3 Whether lack of permanent residence is sufficient ground to deny bail.
Ratio Decidendi
The court found that the prosecution failed to demonstrate compelling reasons to deny the accused bail. The mere absence of a permanent residence does not automatically mean the accused will abscond. The court emphasized that there must be sufficient and specific reasons to justify the denial of bail. Since the prosecution's concerns were not substantiated by evidence, and the accused had demonstrated ties to the jurisdiction, the court held that the constitutional right to bail should be upheld. Accordingly, the accused was admitted to bail with specific conditions to ensure attendance at trial and prevent interference with witnesses.
Court Disposition
bail granted with conditions
Orders
- The accused shall pay cash bail of Kshs. 500,000 and provide one surety of similar amount or, alternatively, execute a personal bond of Kshs. 500,000 and provide two sureties of Kshs. 500,000 each.
- The accused shall not interfere with prosecution witnesses; any such interference shall lead to automatic cancellation of bond.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO.75 OF 2013
REPUBLIC.....................................................RESPONDENT
VERSUS
FRANCIS MAKORI MBATI..............................APPLICANT
RULING
Francis Makori Ombati is the accused in Criminal Case No. 75/2013. He is charged with the murder of Vincent Ambuya. According to the information filed in court he committed the offence on 3rd July 2013 at Kayaba Slums in Industrial Area within Nairobi County. When arraigned in court on 17th July 2013, he denied the charge and was remanded in custody.
The accused has now applied to be released on bail pending trial. He bases his application on Articles 2 (4); 49 (i) h and 50 (2) (a) and (b) of the Constitution.
The application is opposed by the State vide the Replying affidavit of the Investigating Officer No. 58721 Cpl. Otieno and the oral submissions of Mr. Konga who is the prosecuting counsel in the case. It is the State’s contention that the accused has no fixed abode and therefore likely to abscond; and that there is no evidence that the accused suffers tuberculosis; that there was sufficient evidence to sustain the charge; and that the accused was likely to flee the jurisdiction of the court.
On the other hand it is the contention of the accused through his counsel, Mr. Saini that there was no evidence to support any of the averments by the Investigating Officer. In particular, the accused contends that he is a Kenyan and lives at Tetra Pack slums within Nairobi from where he was arrested and that he has no intention of fleeing the jurisdiction of the court.
In this application, it is apparent that the main concern for the prosecution is that the accused may fail to attend trial and abscond because he has not demonstrated that he has permanent residence. Having considered the application in totality however, I do not find the prosecution’s arguments convincing. It cannot be taken that an applicant who has no permanent residence will automatically flee jurisdiction. There has to be sufficient reason to lead to such a conclusion.
In the result, I find that the prosecution has not demonstrated to my satisfaction the existence of compelling reasons why the accused should be denied bail. I therefore admit him to bail in the following terms:-
Accused shall pay cash bail of Five hundred thousand shillings (Kshs.500,000. /-) and one surety of similar amount or in the alternative exucute a personal bond of Kshs.500,000/- and 2 sureties of KShs.500,000/- each.
The accused person shall not interfere with the prosecution witnesses and shall not in any manner whatsoever interfere with the prosecution witnesses. Any such interference shall lead to the automatic cancellation of this bond.
Upon release, he shall report to the Investigating Officer at Industrial Area Police Station once every three weeks until further orders of this court. A compliance report thereof shall be filed with the court by the Investigating Officer through the prosecutor during every routine mention of the case.
The accused person shall attend court for the mention of his case once every month. The first of such mentions shall be on 29th January, 2013.
Ruling delivered, dated and signed at Nairobi this 21st day of November, 2013
R. LAGAT - KORIR
JUDGE
In the presence of:
…………………………….: Court clerk
……………………………: Applicant
……………………………: For the applicant
…………………………….: For the State/respondent