[2011] KEHC 2180 (KLR)
The court held that, despite the seriousness of the charge of murder and the potential risk to the accused's security if released, the State did not oppose bail and there was little risk of absconding. The court found no compelling reason to deny bail, especially as the accused are presumed innocent and the primary...
Source-derived case information.
- Citation
- [2011] KEHC 2180 (KLR)
- Parties
- Applicant: Republic; Defendant: Frankline Akhulunya Onekha; Defendant: Jackson Ondari Shirisi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 53 of 2008
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- Bail granted to both accused persons pending trial.
- Legal Topics
- Bail Pending Trial, Murder Charge, Judicial Discretion on Bail
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Frankline Akhulunya Onekha
Defendant
Jackson Ondari Shirisi
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused persons should be granted bail pending the hearing and determination of the murder case.
- 2 What principles should guide the court in exercising its discretion to grant bail in a murder case.
Ratio Decidendi
The court held that, despite the seriousness of the charge of murder and the potential risk to the accused's security if released, the State did not oppose bail and there was little risk of absconding. The court found no compelling reason to deny bail, especially as the accused are presumed innocent and the primary consideration is their likelihood to attend trial. The court exercised its discretion in favour of granting bail, subject to stringent bond terms to ensure attendance at trial.
Court Disposition
Bail granted to both accused persons pending trial.
Orders
- Each accused shall be released on bond of KShs.2 million together with two sureties of the same amount.
- The sureties shall be approved by the court.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL CASE NO.53 OF 2008
REPUBLIC .................................................................................... PROSECUTOR
V E R S U S
FRANKLINE AKHULUNYA ONEKHA .............................................. 1ST ACCUSED
JACKSON ONDARI SHIRISI ............................................................ 2ND ACCUSED
R U L I N G
The accused, Frankline Akhulunya Onekha and Jackson Ondari Shirisi, are charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. When they were arraigned before court, the accused pleaded not guilty to the charge. The trial has already commenced. Three witnesses have already testified.If the accused are convicted, they shall be sentenced to death.
In accordance with the provision of Article 49(1)(h) of the Constitution, the accused have applied to be granted bail pending the hearing and determination of the case. They have pleaded with the court to be granted reasonable bail terms. The State did not oppose to the accused being granted bail. The principles to be considered by this court in determining whether or not to grant bail were set out in Mwaura v Republic [1986] KLR 600. The said principles include the nature of the offence, the strength of the evidence, the character or behaviour of the accused and the seriousness of the punishment to be meted if the accused is found guilty. The primary underlying consideration is whether the accused will turn up at the appointed place and time for his trial. The court further held that in the exercise of its discretion, if certain exceptional circumstances personal to the accused exist which when weighed against the risk of the accused absconding, the balance will tilt in favour of granting bail.
In the present application, the accused have been charged with the serious offence of murder. This court takes judicial notice of the fact that although the accused are presumed innocent until otherwise proven guilty, the security of the accused may be at risk if the community that they come from would not accept them back if they are released on bail pending the hearing and determination of this case. Since the State has not opposed to the accused being released on bail, and since it appears that there is little risk that the accused will abscond if released on bail pending the hearing of this case, this court will grant bail to the accused pending the hearing of this case.
Each accused shall be released on bond KShs.2 million together with two sureties of the same amount. The sureties shall be approved by this court.
DATED AT KAKAMEGA THIS 22ND DAY OF JUNE 2011
L. KIMARU
J U D G E