[2019] KEHC 6920 (KLR)
The court found that, although bail is a constitutional right, the Pre-Bail report demonstrated imminent danger to the lives of the accused due to community hostility, including threats and destruction of property. The accused and their proposed sureties failed to file affidavits indicating alternative and safe...
Source-derived case information.
- Citation
- [2019] KEHC 6920 (KLR)
- Parties
- Respondent: Republic; Applicant: Frankline Mwenda Kiugu; Applicant: Samson Mwirigi Kiugu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2018
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- bail application declined
- Judges
- F Gikonyo
- Legal Topics
- Bail and Bond, Compelling Reasons, Murder Charge, Pre Bail Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Frankline Mwenda Kiugu
Applicant
Samson Mwirigi Kiugu
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny bail to the accused persons in this case.
Ratio Decidendi
The court found that, although bail is a constitutional right, the Pre-Bail report demonstrated imminent danger to the lives of the accused due to community hostility, including threats and destruction of property. The accused and their proposed sureties failed to file affidavits indicating alternative and safe abode, as directed by the court. The court determined that releasing the accused on bond would be perilous and their attendance in court could not be guaranteed. These constituted compelling reasons to deny bail, and the application was declined.
Court Disposition
bail application declined
Orders
- The application for bail by the accused persons is declined.
- The accused shall remain in custody pending trial.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 1 OF 2018
REPUBLIC...........................................................PROSECUTOR
VERSUS
FRANKLINE MWENDA KIUGU.......................1ST ACCUSED
SAMSON MWIRIGI KIUGU..............................2ND ACCUSED
RULING
1. Bail is a constitutional right. Article 49(1) (h) of the Constitution specifically provides that an accused person has the right-
(h) to be released on bond or bail, on reasonable conditions pending, a charge or trial, unless there are compelling reasons not to be released. [Emphasis mine]
2. In this case the accused persons are charged with murder c/s 203 as read with section 204 of the Penal Code Cap 63 Laws of Kenya.
3. The prosecution submitted that the accused persons ought to be denied bail because there is still hostility from the community. They relied on the Pre- Bail report made by Patrick Kobia, Probation Officer Meru dated 14/6/2018. It specifically states that the accused persons mother vacated from where she resided and moved to Ruiru after members of the public threatened to lynch her. It also stated that a mob burned all the property belonging to the accused persons and their mother.
4. Mrs Ntarangwi Counsel for the accused person submitted that the accused may move to a new location and reside with their relatives i.e. at Ruiru. But Mr. Namiti for state responded to this proposition and requested that the accused persons be asked to file an affidavit of intended sureties and proposed abode and how they will ensure attendance in court.
5. This Court on 7th March 2019 directed that the accused persons provide the fore stated affidavits but none was filed.
6. Whereas I have lamented before about members of the public taking the law into their own hands and harming accused persons, it is clear from the Pre-bail report that there is imminent danger on the lives of the accused persons. This is borne from the actions of the Community before arrest and during interviews carried out for purposes of the Pre-bail inquiry. Such uncouth behaviour should be stamped out of this society by taking firm and appropriate legal action against any person or persons who take the scourge of revenge upon themselves as if no law existed. In saying these things, I am acutely aware that the state should provide security to each and every citizen and resident of Kenya. That notwithstanding, however, I do not wish to experiment with the lives of the accused persons.
7. Unfortunately, neither the accused persons nor the proposed sureties filed an affidavit on alternative and safe abode which the court may consider. The material before me shows that it would be perilous to release the accused on bond. In any event, their attendance in court cannot be guaranteed. Accordingly, I find these two reasons to be compelling reasons and deny the accused bail. Their application for bail is accordingly declined.
Dated, signed and delivered in open court this 12th day of June, 2019.
........................
F. GIKONYO
JUDGE
In presence of
M/S Otieno for accused
Accused present
Namiti for state
........................
F. GIKONYO
JUDGE