[2021] KEHC 9274 (KLR)
The court found that, in the absence of any objection from the prosecution and no adverse information or compelling reasons presented, the accused is entitled to bail as a constitutional right. The court emphasized that the prosecution must demonstrate compelling reasons to deny bail, and since none were provided,...
Source-derived case information.
- Citation
- [2021] KEHC 9274 (KLR)
- Parties
- Respondent: Republic; Applicant: Francis Vaati Mwania
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E007 of 2020
- Procedural Posture
- Bail Application / Ruling on Bail Application Pending Trial
- Outcome
- Application for bail allowed; accused granted bail on specified terms.
- Judges
- GMA Dulu
- Legal Topics
- Bail and Bond, Compelling Reasons, Pretrial Release
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Francis Vaati Mwania
Applicant
Procedural Posture
Bail Application / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny the accused bail.
Ratio Decidendi
The court found that, in the absence of any objection from the prosecution and no adverse information or compelling reasons presented, the accused is entitled to bail as a constitutional right. The court emphasized that the prosecution must demonstrate compelling reasons to deny bail, and since none were provided, the accused should be released on reasonable terms. The seriousness of the offence was considered in setting the bail terms, but did not in itself constitute a compelling reason to deny bail.
Court Disposition
Application for bail allowed; accused granted bail on specified terms.
Orders
- The accused may be released on signing his own bond of Kshs.100,000 with one surety of similar amount.
- Alternatively, the accused may be released on payment of cash bail of Kshs.200,000.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MAKUENI
HCCR NO. E007 OF 2020
REPUBLIC.........................................PROSECUTION
-VERSUS-
FRANCIS VAATI MWANIA......................ACCUSED
RULING
1. The accused person Francis Vaati Mwania who stands charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63) has orally asked to be released on bond/bail on reasonable terms through his counsel Mr. Kioko.
2. The State through Prosecuting Counsel Ms. Gakumu do not oppose the release of the accused person on bail/bond as they have not received any adverse report, but the Prosecuting Counsel has asked that the terms of bail be commensurate with the nature of the offence charged.
3. Under Article 49(1) (h) of the Constitution of Kenya 2010, every arrested person has a right to be released on bond/bail on reasonable terms. The said Article provides as follows –
“49(1) An arrested person has the right –
(b)to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released”
4. Courts have held that the primary responsibility of demonstrating compelling reasons for denial of bond or bail rests with the prosecution. Courts have also taken into account other factors that have come into their knowledge from any other persuasive sources like Probation Officer’s reports in determining whether or not to grant bail.
5. In the present case, the prosecution has no objection to the accused person being released on bond bail. On my part from the information availed to the court at this stage, I find no compelling reason to deny the accused person release on bond or bail.
6. I thus allow the application of the accused and order as follows:-
1) The accused herein Francis Vaati Mwania may be released on signing his own bond of Kshs.100,000/=with one surety of similar amount.
2) In the alternative he may be released on payment of cash bail of Kshs.200,000/=.
3) He will not interfere with prosecution witnesses.
4) He will attend every mention and the hearing of the case until it is finalized.
Delivered, signed & dated this 11th day of February, 2021, in open court at Makueni.
GEORGE DULU
JUDGE