[2020] KEHC 586 (KLR)
The court found that the pre-bail report did not disclose compelling reasons to deny the accused bail. The allegations that the accused changed his sim card and destroyed the victim's phone were actions taken before arrest and could be interpreted as attempts to conceal the offence, not as evidence of a flight risk....
Source-derived case information.
- Citation
- [2020] KEHC 586 (KLR)
- Parties
- Respondent: Republic; Applicant: Frankline Wesonga Okoth
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 34 of 2020
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- bail granted
- Legal Topics
- Bail and Bond, Compelling Reasons, Flight Risk, Pre Bail Report
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Frankline Wesonga Okoth
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the pre-bail report discloses compelling reasons to deny the accused bail or bond.
- 2 Whether allegations of changing sim card, destroying the victim's phone, and hailing from Busia constitute compelling reasons for denial of bail.
Ratio Decidendi
The court found that the pre-bail report did not disclose compelling reasons to deny the accused bail. The allegations that the accused changed his sim card and destroyed the victim's phone were actions taken before arrest and could be interpreted as attempts to conceal the offence, not as evidence of a flight risk. The fact that the accused hails from Busia, which is within Kenya, does not constitute a compelling reason for denial of bail and may amount to discrimination. The court emphasized that compelling reasons must be substantive and not based on mere suspicion or geographic origin. Consequently, the accused was granted bond with specified terms.
Court Disposition
bail granted
Orders
- The accused is granted bond of Kshs. 500,000 with one surety of like amount or cash bail of Kshs. 300,000.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT ELDORET
CRIMINAL CASE NO. 34 OF 2020
REPUBLIC ..............................................................................STATE
VERSUS
FRANKLINE WESONGA OKOTH ...............................ACCUSED
RULING
Article 49(I) (h) of the Constitution of Kenya 2010 reads:-
“An arrested person has the right to be released on bond of bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
The accused herein is charged with the offence of Murder contrary to Section 203 as read with Section 204 of the Penal Code. Though this is a capital offence, there is no dispute that it’s bailable. What is in issue herein is whether the pre-bail report asked for by the court reveals compelling grounds of which would warrant the accused be denied bail or bond. The applicant says it does not as the disclosure by the probation officer that the accused tried to evade arrest by changing his sim card and destroying the victim’s phone, is based on information obtained from the investigation diary and should have been availed by the investigating officer so as to be cross examined. The allegation that the accused comes from Busia and can therefore easily abscond is unfair as Busia is part of Kenya.
The prosecutor on her part alleged the pre-bail report is negative on his release on bond and can’t just be wished away.
“Compelling” means evoking interest, attention, or admiration in a powerfully irresistible or overwhelming way. The pre-bond report does not recommend the accused’s release on bond for the reasons that he is alleged to had changed his sim card and destroyed his victim’s phone. Also that he hails from Busia and can easily cross to Uganda. These factors are not compelling that the accused is a flight risk. If he changed his sim card and destroyed his victim’s phone as alleged, that was before his arrest and could have aimed at concealing the offence which is different from absconding. Having been identified as a suspect and arrested, changes the entire scenario. As a known suspect who have been charged, the chances to abscond could be lower. The other issue is that he hails from Busia. As rightly put by the Advocate for the applicant, Busia is in Kenya and denying him bond on that ground may amount to discrimination.
The pre-bail report does not therefore disclose compelling reasons which would lead to denial of bond to the accused person.
I do grant him bond of Kshs. 500,000/- with one surety in like amount or Cash bail of 300,000/-.
S. M GITHINJI
JUDGE
DATED, SIGNEDandDELIVEREDatELDORETthis14thday of December, 2020.
In the presence of:-
Mr. Oduor for the accused person
Ms. Limo for state
Ms Gladys - Court assistant