[2013] KEHC 405 (KLR)
The court found that while there were no compelling reasons advanced by the prosecution to deny the accused bond, the Bail Assessment Report indicated the accused had a history of aggression when intoxicated and that the case circumstances suggested suitability for plea bargaining. The court exercised its discretion...
Source-derived case information.
- Citation
- [2013] KEHC 405 (KLR)
- Parties
- Applicant: Republic; Respondent: Francis Ombuna Ochoi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Murder Case 64 of 2013
- Procedural Posture
- Criminal Murder / Ruling on Bond Application Pending Trial
- Outcome
- Bond application refused at this stage; matter to be mentioned for further directions.
- Judges
- AT Sitati
- Legal Topics
- Bail and Bond, Compelling Reasons, Murder Charge, Plea Bargain
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Francis Ombuna Ochoi
Respondent
Procedural Posture
Criminal Murder / Ruling on Bond Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bond or bail pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny the accused bond as required under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that while there were no compelling reasons advanced by the prosecution to deny the accused bond, the Bail Assessment Report indicated the accused had a history of aggression when intoxicated and that the case circumstances suggested suitability for plea bargaining. The court exercised its discretion to decline bond at this stage, directing the parties to reconsider the facts with a view to possible reduction of the charge from murder to manslaughter. The application for bond was therefore refused for the time being, pending further mention for indication of how the matter would proceed.
Court Disposition
Bond application refused at this stage; matter to be mentioned for further directions.
Orders
- Application for bond is refused for now.
- Parties to reconsider the facts with a view to possible plea bargain or reduction of charge.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL MURDER NO.64 OF 2013
REPUBLIC ………………………………………………………..….. PROSECUTOR
VERSUS
FRANCIS OMBUNA OCHOI ………………………….………………... ACCUSED
RULING
Francis Ombuna Ochoi is charged with one count of murder contrary to section 203as read with section 204of the Penal Code, the particulars being that on the 14th day of May 2013 at Nyamwane village within Kisii County in the Republic of Kenya, he murdered Starford Ombuna. He pleaded not guilty and is awaiting trial.
Meantime, the accused wishes to be released on bond. Mr. Okenye, who appears for the accused submitted that the accused has a constitutional right to be admitted to bond or bail on reasonable conditions pending trial of his case. Article 49 (1) (h) of the Constitution under which this application is made provides that “an arrested person has the right to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
The duty to demonstrate to the court that there are compelling reasons why the accused herein should not be released on bond entirely rests upon the prosecution. In the instant case, the State is not opposed to the accused being released on bond although the final word in this, as in all other matter sin which a court has to exercise its discretion, rests with the court. The Affidavit by the State is sworn by No.67867 PC
Alfred Nasio of Kisii Police Station.
There is also on record a Bail Assessment Report dated 25th October 2013. The report shows that though the accused is gentle by nature, he can be aggressive when drunk. The accused has 3 living children. The fourth child is the deceased. Apparently, the accused says he committed the offence in a fit of anger and while under the influence of drink. He wants reconciliation with his wife and other children.
Although it is apparent that there are no compelling reasons why accused may not be released on bond a reading of the Bail Assessment Report shows that there is a matter that is suitable for plea bargain. In the circumstances, I decline to grant bond but order that both parties reconsider the facts of the case with a view to deciding whether or not the charge of murder can be reduced to the lesser charge of manslaughter.
Accordingly the application for bond is refused for now. Mention on 16th January 2014 for an indication from the parties as to which way the matter shall proceed.
Orders accordingly.
Dated and delivered at Kisii this 19th day of December, 2013
R.N. SITATI
JUDGE
In the presence of:
Mr. Shabola (present) for State
Mr. Minda for Accused
Mr. Bibu - Court Clerk