[2010] KEHC 482 (KLR)
The court held that, although the new Constitution provides for the right to bail unless there are compelling reasons, statutory provisions prohibiting bail for offences such as murder, treason, and robbery with violence remain in force until declared inconsistent with the Constitution. The gravity of the offence...
Source-derived case information.
- Citation
- [2010] KEHC 482 (KLR)
- Parties
- Respondent: Republic; Applicant: Gerald Irungu
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 97 of 2010
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- bail denied
- Judges
- MJA Emukule
- Legal Topics
- Bail and Bond, Compelling Reasons, Right to Bail, Offences Punishable by Death
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Gerald Irungu
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the accused is entitled to bail under the Constitution despite being charged with an offence punishable by death.
- 2 Whether the prosecution has provided compelling reasons to deny bail to the accused.
Ratio Decidendi
The court held that, although the new Constitution provides for the right to bail unless there are compelling reasons, statutory provisions prohibiting bail for offences such as murder, treason, and robbery with violence remain in force until declared inconsistent with the Constitution. The gravity of the offence and societal interests constitute compelling reasons to deny bail to persons charged with offences punishable by death. Therefore, the accused, charged with such an offence, is not entitled to bail at this stage.
Court Disposition
bail denied
Orders
- The application for bail by the accused is denied.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CRIMINAL CASE NO. 97 OF 2010
REPUBLIC……………………………….PROSECUTOR
VERSUS
GERALD IRUNGU……………………………ACCUSED
RULING
Mr Kipkoech has applied to this court for admission to bail of the accused under Section 49(i)(h) of the Constitution under which the right to bail is automatic unless there are compelling reasons for denying an accused bail/bond.
Mr. Nyakundi objected to the application and submitted that the same ought to be brought by way of a formal application to enable the Investigating Officer to submit grounds/reasons which could constitute compelling grounds for denial of bail.
I have considered the respective arguments by counsel. Indeed a formal application for bail/bond would avail the prosecuting authority time to submit by way of an affidavit cogent grounds why an accused person ought not to be admitted to bond/bail.
In the Constitution of the Second Republic any accused person who is charged with an offence punishable by imprisonment of less than six months is entitled as right to bond/bail and the court has no discretion on the matter.
For persons charged with offences punishable by imprisonment for a term more than six months, the grant of bail/bond is not automatic.
Secondly, for these grave offences, the prosecuting authority must show compelling reasons why the accused ought not be admitted to bail/bond.
Under Section 72(5) of the repealed Constitution, no person who was charged with an offence punishable by death was allowed to be admitted to bail. This provision does not exist in the new Constitution.
However Section 123(1) and 123(4) of the Criminal Procedure Code, prohibited and prohibits this court from admitting any person to bond/bail if he was charged with the offence of murder, treason, robbery with violence or alleged robbery with violence. These provisions may now be regarded as inconsistent with the new Constitution but until they are so declared they still constitute compelling reasons why an accused person should not be admitted to bond/bail.
The underlying reason for this is both philosophical and societal. It is the philosophy of all civilized nations that malefactors of all types and more so those accused of taking away sacred human life must not be allowed to walk and breath the air with other citizens whose kin they have smoked away their lives.
The courts will be failing in their duty if they allowed known killers to strut around in the streets. Their own safety will not be guaranteed and violence by way of revenge may spiral to uncontrollable levels.
These are therefore, in my humble view, compelling reasons why the accused charged with the offence punishable by death ought not to be admitted to bond/bail.
The application by Mr. Kipkoech is therefore denied.
There shall be orders accordingly.
Dated and signed at Nakuru this 1st day of October, 2010
M. J. ANYARA EMUKULE
JUDGE