[2015] KEHC 3804 (KLR)
The court found that the applications for bail by the accused persons were unopposed, as the purported opposition by the Republic was not properly before the court due to a defective affidavit. In the absence of any compelling reasons presented to deny bail, and in accordance with Article 49(1)(h) of the...
Source-derived case information.
- Citation
- [2015] KEHC 3804 (KLR)
- Parties
- Applicant: Republic; Defendant: James Sioyi Kipkania; Defendant: Geoffrey Makana Nyakundi
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2014
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- bail_granted
- Judges
- DW Mbuteti
- Legal Topics
- Bail Pending Trial, Murder Charge, Constitutional Rights, Compelling Reasons
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
James Sioyi Kipkania
Defendant
Geoffrey Makana Nyakundi
Defendant
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny bail as required by Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that the applications for bail by the accused persons were unopposed, as the purported opposition by the Republic was not properly before the court due to a defective affidavit. In the absence of any compelling reasons presented to deny bail, and in accordance with Article 49(1)(h) of the Constitution, the court held that the accused persons are entitled to bail. The court therefore admitted both accused to bail on their own cognizance with a surety, as no valid objection was raised and the constitutional threshold for denial was not met.
Court Disposition
bail_granted
Orders
- Each accused is admitted to bail upon their own personal cognizance in the sum of KShs 300,000 and one separate surety each in like sum.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA T MURANG’A
CRIMINAL CASE NO 5 OF 2014
REPUBLIC……………………………….……........….PROSECUTOR
VERSUS
1. JAMES SIOYI KIPKANIA
2. GEOFFREY MAKANA NYAKUNDI…..........…......ACCUSED
R U L I N G
1. The Accused persons herein, James Sioyi Kipkania and Geoffrey Makana Nyakundi, are jointly charged with murdercontrary to section 203 as read with section 204 of the Penal Code. It is alleged in the information dated 15/01/2014 that in the night of 19th and 20th July 2013 at Kagaa area within Kiambu County, and jointly with others not before the court, they murdered one Bernard Irungu Kirubi. They pleaded not guilty on 29th January 2014. Their trial commenced on 26/06/2014 before Ngaah, J (since transferred to another station) when one witness testified. The case is scheduled for further hearing on 26/10/2015.
2. Both Accused have now applied to be released on bail pending conclusion of their trials. Those applications (notices of motion dated 25/03/2014 and 23/04/2015) are the subject of this ruling.
3. Bail is now a constitutional right for any offence, and will be denied only for compelling reason. Conditions for such bail must, again by constitutional edict, be reasonable. See Article 49(1) (h) of the Constitution of Kenya, 2014.
4. The Republic purported to oppose bail, apparently in respect to the 1st Accused only, by a replying affidavit filed on 20/04/2015. But it turned out at the hearing of the applications that the affidavit by one No 71662 PC Mbelenge, was not duly commissioned by a Commissioner of Oaths or Magistrate. In effect therefore, there is no replying affidavit properly before the court. The applications thus stand unopposed.
5. I find no compelling reason to deny the Accused persons bail. They shall be admitted to bail upon their own personal cognizance in the sum of KShs 300,000/00 and one separate surety each in like sum. It is so ordered.
DATED, SIGNED AT MURANG’A THIS 16TH DAY OF JULY 2015
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 17TH DAY OF JULY 2015