[2017] KEHC 3778 (KLR)
The court found that although the Constitution grants the right to bail, this right is not absolute and may be limited where there are compelling reasons. In this case, the accused, both minors, did not provide any assurance that they would attend court for the delivery of judgment. The court considered the...
Source-derived case information.
- Citation
- [2017] KEHC 3778 (KLR)
- Parties
- Applicant: Republic; Defendant: J M G; Defendant: D K W
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Judgment Date
- 2 August 2017
- Case Number
- Criminal Case 36 of 2016
- Procedural Posture
- Criminal Case / Ruling on Bail Application After Close of Defence Case, Pending Judgment
- Outcome
- bail application dismissed
- Judges
- MM Kasango
- Legal Topics
- Bail Application, Juvenile Accused, Compelling Reasons, Presumption of Innocence
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
J M G
Defendant
D K W
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application After Close of Defence Case, Pending Judgment
Legal Issues
- 1 Whether the accused persons, both minors, should be released on bail pending judgment after the close of the defence case.
- 2 Whether there are compelling reasons to deny bail under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that although the Constitution grants the right to bail, this right is not absolute and may be limited where there are compelling reasons. In this case, the accused, both minors, did not provide any assurance that they would attend court for the delivery of judgment. The court considered the proximity of the judgment date and determined that there was a real risk the accused would abscond if released on bail at this stage. Therefore, the application for bail was dismissed on the basis that compelling reasons existed to deny bail, specifically the risk of flight and failure to attend court for judgment.
Court Disposition
bail application dismissed
Orders
- The applications for bail by both accused are dismissed.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CRIMINAL CASE NO. 36 OF 2016
REPUBLIC..........................................PROSECUTOR
versus
J M G......................................................1st ACCUSED
D K W.....................................................2nd ACCUSED
RULING
1. There is no doubt the Constitution pronounces its self in Article 49 (1)(h) that an arrested person has a right:
tobe released on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not be released.
IN REPUBLIC - V- MAMUSH HIRBO FAJA [2014] eKLRthe court stated thus: while discussing an accused’s right to bail:
“Article 49 (1) (h) provides that an accused person is entitled to be released on bond/bail unless the prosecution has compelling reasons to the contrary. The right to bail is therefore not absolute and it is at the discretion of the court.
The right to bail does not depend on whether or not the prosecution have strong evidence against the accused. The relevant constitutional provision does not classify offences that are bailable or not- Bail is open to all offences including capital offences. The basis of this right has a bearing on the presumption of innocence until prove guilty as provided for by Article 50 (2) (a). The seriousness of the offence and the strength of the evidence is therefore, not a basis of denying the accused person bail.”
2. The subjects in this case J M G and D K W who are 16 and 17 years old respectively seek they be released on bail at the close of the defence case pending this court’s judgment. Learned Counsel Mr Chweya for both accused submitted that they, and in particular the 2nd subject needs to attend school. That while he has been detained at the children’s home 2nd subject had been attending the library and studying privately.
3. The Constitutional right to bail is subject to there being no compelling reasons not to grant bail. The subjects in making their application for bail gave no assurance, at all, that they will attend court for their judgment. There is in my view a real risk that the subjects would abscond and take flight, now that their judgment is scheduled for 27th September, 2017.
It is for that reason that their applications for bail are dismissed.
Dated and Delivered at Nanyuki this 2nd August 2017
MARY KASANGO
JUDGE
Coram
Before Justice Mary Kasango
Court Assistant: Njue
J M G : 1st Accused
D K W :2nd Accused
For 1st accused ...................................
For 2nd Accused ..................................
For state: .............................................
Language ............................................
COURT
Ruling delivered in open court
MARY KASANGO
JUDGE