[2021] KEHC 5002 (KLR)
The court found that accused 1, 2, and 3 did not present compelling reasons to deny bail, as the Probation Report recommended their release and there was no evidence of flight risk or community hostility. However, accused 4, Rashid Salim Salim, was found to be a flight risk due to lack of family support, community...
Source-derived case information.
- Citation
- [2021] KEHC 5002 (KLR)
- Parties
- Appellant: Republic; Respondent: Henry Ngingo Mwachala; Respondent: Mathew Mageda Mwachala; Respondent: Jones Mwabingu Mungereza; Respondent: Rashid Salim Salim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal E003 of 2021
- Procedural Posture
- Criminal Appeal / Ruling on Bail Application
- Outcome
- Bail granted to accused 1, 2, and 3; bail denied to accused 4.
- Legal Topics
- Bail and Bond, Pretrial Release, Flight Risk, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Henry Ngingo Mwachala
Respondent
Mathew Mageda Mwachala
Respondent
Jones Mwabingu Mungereza
Respondent
Rashid Salim Salim
Respondent
Procedural Posture
Criminal Appeal / Ruling on Bail Application
Legal Issues
- 1 Whether the accused persons should be released on bond pending trial.
- 2 Whether any of the accused poses a flight risk or other factors justifying denial of bail.
Ratio Decidendi
The court found that accused 1, 2, and 3 did not present compelling reasons to deny bail, as the Probation Report recommended their release and there was no evidence of flight risk or community hostility. However, accused 4, Rashid Salim Salim, was found to be a flight risk due to lack of family support, community hostility, substance abuse, and proximity to an international border, making it likely he could abscond. Therefore, bail was granted to accused 1, 2, and 3 on terms, but denied to accused 4, who was ordered to remain in custody pending trial.
Court Disposition
Bail granted to accused 1, 2, and 3; bail denied to accused 4.
Orders
- Accused 1, 2, and 3 to be released on bond of Kshs. 500,000 with surety of similar amount each.
- Accused 4 to remain in custody pending hearing and determination of the charge against him.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CRIMINAL APPEAL NO. E003 OF 2021
REPUBLIC......................................................................................PROSECUTOR
VERSUS
1. HENRY NGINGO MWACHALA
2. MATHEW MAGEDA MWACHALA
3. JONES MWABINGU MUNGEREZA
4. RASHID SALIM SALIM...................................................................ACCUSED
RULING
1. Henry Ngingo Mwachala, Mathew Mageda Mwachala, Jones Mwabingu Mungereza and Rashid Salim Salim are jointly charged with the offence of murder contrary to section 203 as read with section 204 of the Penal Code.
2. Particulars are that the accused persons on the 10th day of March 2021 at Ngilinyi village, in Wundanyi Sub County within Taita Taveta County murdered Francis Mwakio Mwakitoi.
3. The accused persons pleaded not guilty and the court called for a Prebail report. The Probation Report was filed on 17th May 2021 and it was recommended that accused 1, accused 2 and accused 3 may be released on bond. However Probation officer found that accused 1 Rashid Salim Salim was a flight risk as he does not have a good relation with his siblings and there will be not family support during trial and follow up cases to his family went unanswered. It was also found that community where he had fixed abode were hostile to his return and hi safety was not guaranteed. He was also said to be a known bhang smoker and drunkard. He also lives on a border lower to Tanzania where he also has relations and he might flee.
4. In the circumstances of the Prebail Report accused 1, accused 2 and accused 3 may be released on bond of Kshs. 500,000/= with surety of similar amount each. Accused 4 will however remain in custody pending hearing and determination of the charge against him.
JUDGEMENT DELIVERED, DATED AND SIGNED IN OPEN COURT THIS 25TH DAY OF JUNE, 2021.
HON. LADY JUSTICE ADWERA ONG’INJO
JUDGE
25. 6.2021
In the presence of:-
Ogwel – Court Assistant
Ms. Karanja holding brief Chirchir for State
Mr. Gitahi Adv. for accused
Accused 1 - Henry Ngingo Mwachala
Accused 2 - Mathew Mageda Mwachala
Accused 3 - Jones Mwabingu Mungereza
Accused 4 - Rashid Salim Salim
HON. LADY JUSTICE ADWERA ONG’INJO
JUDGE
25. 6.2021