[2014] KEHC 370 (KLR)
The court found that the prosecution had presented compelling reasons to deny bond at this stage. Specifically, the court accepted the prosecution's assertion that the situation on the ground remained volatile, with a real risk of retaliatory attacks against the accused if released. Additionally, the accused was...
Source-derived case information.
- Citation
- [2014] KEHC 370 (KLR)
- Parties
- Accused: Jared Mogaka Ayako; Prosecutor: Republic
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 100 of 2014
- Procedural Posture
- Criminal Case / Ruling on Oral Bond Application Pending Trial
- Outcome
- application for bond declined
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Flight Risk, Murder Charge
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jared Mogaka Ayako
Accused
Republic
Prosecutor
Procedural Posture
Criminal Case / Ruling on Oral Bond Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bond pending trial for the offence of murder.
- 2 Whether the prosecution has provided compelling reasons to deny bond as required by Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that the prosecution had presented compelling reasons to deny bond at this stage. Specifically, the court accepted the prosecution's assertion that the situation on the ground remained volatile, with a real risk of retaliatory attacks against the accused if released. Additionally, the accused was found to be of no fixed abode, increasing the risk of flight. The absence of a pre-bail assessment report further limited the court's ability to consider the application favorably. Consequently, the application for bond was declined, but the court indicated that a renewed application could be considered if a favorable pre-bail assessment report is provided.
Court Disposition
application for bond declined
Orders
- The application for bond by the accused is declined.
- The accused may renew the application if a favourable pre-bail assessment report is provided.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 100 OF 2014
REPUBLIC………………………..PROSECUTOR
VERSUS
JARED MOGAKA AYAKO……………ACCUSED
RULING
This is an oral application for bond by the accused person, Jared Mogaka Ayako. The accused is charged with the offence of murder contrary to section 203as read with 204 of the Penal Code. It is alleged that on the 1st day of October, 2014 at Nyosia village in Kisii Central District within Kisii county within the Republic of Kenya murdered Dominic Nyachae Ayako. He denies the offence. And he now applies to be released on bond pending the hearing and determination of his case.
This application arises from the provision of article 49(1)(h) of the Constitution of Kenya. Those provisions subject to compelling reasons otherwise make the offence of murder bailable. It is incumbent upon the prosecution to furnish the court with reasons, compelling or otherwise, to decide on the application for bond.
Thus in their affidavit dated 27th October, 2014 and filed on the 30th October, the prosecution puts forward what it terms as a compelling reasons. Without doubt, the prosecution emphasis para 8, 9 and 10 respectively of their affidavit. In para. 8, the state, says, the situation on the ground is still volatile, in that if released, there could retaliatory attacks on the accused by the members of the victim’s family and the community as a whole.
Since the accused is of no fixed abode he is obviously a flight risk. The temptation to abscond or go into hiding is very real, if released on bail pending trial.
The pre-bail assessment report is absent to guide the court further.
In the light of the submissions by the state, the application for bond be and is hereby declined.
Perhaps if a pre-bail assessment report be called for and if it is favourable, the application if renewed may get favourable consideration by this court.
Dated and delivered at KISII this 15th day of December, 2014.
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Bigogo holding brief for Ondari for the applicant
Majale for the state for the respondent
Edwin Mongare Court Clerk.