[2014] KEHC 326 (KLR)
The court held that bond is a constitutional right unless the prosecution demonstrates compelling reasons to deny it. In this case, the prosecution's assertions of possible interference with witnesses and risk of absconding were not substantiated with concrete evidence. The pre-bail assessment report for Abton Asuma...
Source-derived case information.
- Citation
- [2014] KEHC 326 (KLR)
- Parties
- Accused: Ibrahim Asuma Nyacheo; Accused: Abton Nyacheo Asuma; Accused: Duncan Anunda Asuma; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 26 of 2014
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- partially allowed
- Legal Topics
- Bail and Bond, Murder Charges, Constitutional Rights, Pre Bail Assessment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ibrahim Asuma Nyacheo
Accused
Abton Nyacheo Asuma
Accused
Duncan Anunda Asuma
Accused
Republic
Respondent
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused persons are entitled to bond pending trial for the offence of murder.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bond as required by the Constitution.
Ratio Decidendi
The court held that bond is a constitutional right unless the prosecution demonstrates compelling reasons to deny it. In this case, the prosecution's assertions of possible interference with witnesses and risk of absconding were not substantiated with concrete evidence. The pre-bail assessment report for Abton Asuma was favorable, and there was no objection from the deceased's husband. Therefore, the court granted bond to Abton Nyacheo Asuma, subject to conditions, and deferred the decision for the other two accused pending their pre-bail assessment reports.
Court Disposition
partially allowed
Orders
- Abton Nyacheo Asuma is released on personal bond of Kshs. 500,000 with two sureties of similar amount, to be approved by the Deputy Registrar.
- Upon release, Abton Nyacheo Asuma must attend court for mention of his case every month until hearing and determination.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CRIMINAL CASE NO. 26 OF 2014
REPUBLIC...............................................PROSECUTOR
VERSUS
IBRAHIM ASUMANYACHEO......................1ST ACCUSED
ABTON NYACHEO ASUMA........................2ND ACCUSED
DUNCAN ANUNDA ASUMA........................3RD ACCUSED
RULING
1. This an oral application for bond for three accused persons, Ibrahim Asuma Nyacheo and Abton Nyacheo Asuma and Duncan Anunda Asuma. The three were charged with the offence of murder, contrary to section 203 as read with 204. It is alleged that between 28th January, 2014 and 12th February, 2014 at Matongo sub-location, Matongo Location in Marani District within Kisii County; jointly murdered JACKLINE MORAA They deny the charge. And ask for bond pending hearing and determination of their case.
2. They rely on article 49(1)(h) of the Constitution of Kenya which provision makes murder bailable, unless there are compelling reasons to deny them bond.
3. In this case, the state has filed an affidavit dated 4th November, 2014, the deponent being an investigating officer.
4. In paragraphs 5,6 and 9 respectively the state says that if released the applicants would interfere with witnesses which would lead to miscarriage of justice. Further, the state also says, the temptation to abscond or go into hiding if released on bail pending trial is real.
5. The counsel for the applicant, oppose the state’s submissions. He contends the two paragraphs as stated are not compelling reasons by so stating. There is protection of witnesses act, that the court can use its authority to shield the suspects from tempering with witnesses.
6. He says bond is a constitutional right. Prosecution must give concrete examples of what occurred in particular matter as a precedent and how the court respondent, this is more persuasive.
7. The pre-bail assessment report was filed for Abton Asuma only. That report is favourable to him. He is 21 years old. The husband of the deceased has no objection to the accused being given bond. The other two, Ibrahim Asuma Nyacheo and Duncan Anunda Asuma, had no assessment report made on them.
8. The court would interested to have pre-bail assessment report made on the two accused for the court to make a considered decision on their bond application.
9. In the meantime, I allow the application for bond in respect of Abton Nyacheo Asuma and have him released on personal bond of Kshs. 500,000 with two sureties of similar amount the same to be approved by the Deputy Registrar of this court.
10. Upon his release he will attend court for mention of his case every month until the hearing and determination of his case. Any default of one mention without credible explanation, the bond will forthwith be cancelled and the sureties will be made to account.
11. The first such mention to be on 22nd December, 2014.
12. It is so ordered.
Dated and delivered at KISII this 20th day of November, 2014
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Ondari holding brief for Kaburi for the applicant
Mbelete for the state for the respondent
Edwin Mongare court clerk.