[2014] KEHC 6175 (KLR)
The court found that the prosecution's allegation that the 5th accused went into hiding was not supported by any affidavit or evidence under oath, and thus amounted to a mere statement from the bar. In the absence of any sworn averment or compelling evidence, the court held that there was no compelling reason to...
Source-derived case information.
- Citation
- [2014] KEHC 6175 (KLR)
- Parties
- Applicant: Republic; Defendant: Joseph Kirimi; Defendant: Zachary Karungu; Defendant: Nicholas Kibaara; Defendant: David Kimathi Uhuru; Defendant: 5th Accused
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 25 of 2010
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- Bail granted to the 5th accused on same terms as co-accused.
- Legal Topics
- Bail Application, Compelling Reasons, Pretrial Release, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Joseph Kirimi
Defendant
Zachary Karungu
Defendant
Nicholas Kibaara
Defendant
David Kimathi Uhuru
Defendant
5th Accused
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the 5th accused should be granted bail on the same terms as his co-accused.
- 2 Whether the prosecution's allegation that the 5th accused went into hiding constitutes a compelling reason to deny bail.
Ratio Decidendi
The court found that the prosecution's allegation that the 5th accused went into hiding was not supported by any affidavit or evidence under oath, and thus amounted to a mere statement from the bar. In the absence of any sworn averment or compelling evidence, the court held that there was no compelling reason to deny the 5th accused bail. The court emphasized that the right to bail can only be limited by compelling reasons, which must be substantiated and not merely alleged. Accordingly, the 5th accused was granted bail on the same terms as his co-accused.
Court Disposition
Bail granted to the 5th accused on same terms as co-accused.
Orders
- The 5th accused may be released on a cash bail of Ksh.250,000.
- Alternatively, the 5th accused may be released on a bond of Ksh.250,000 with two sureties of similar amount.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 25 OF 2010
REPUBLIC...................................................PROSECUTOR
VERSUS
JOSEPH KIRIMI...........................................1ST ACCUSED
ZACHARY KARUNGU.................................2ND ACCUSED
NICHOLAS KIBAARA.................................3RD ACCUSED
DAVID KIMATHI UHURU.............................4TH ACCUSED.
RULING
The 5th Accused is charged with murder contrary to section 203 of the Penal Code, alongside four others.The other four co accused were granted bail on 17th October 2012. That was one year two months before the arrest of the 5th accused.
Mr. M. Mwenda urged court to grant the 5th accused bond preferably on same terms as his co accused as there was no reason to deny him bail.
Mr. Mungai has urged court to deny the 5th accused bail citing his delayed arrest and enjoinment in this case was as a result of having gone underground.
I have considered this application and oral submissions by both counsels to the case.
There is no affidavit by the State in response to the application for bail for the 5th accused.The prosecution counsel’s submission that the 5th accused went into hiding after the offence is a mere statement from the bar. It ought to have been under oath in order to give the 5th accused notice so as to respond if necessary.In absence of any such averment under oath, that statement remains a mere allegation.
It could have been a material consideration had the state put it on oath.This is because likelihood accused may not show up for his trial is a good and compelling ground to deny the accused bail.
I see no compelling reason to deny accused bail. I will grant him similar terms as his co accused which is.
Accused may be released on a cash bail of Ksh.250,000/-.
Alternatively accused may be released on a bond of Ksh.250,000/- with two sureties of similar amount.
Those are my orders.
DATED SIGNED AND DELIVERED THIS 27TH DAY OF MARCH, 2014
LESIIT J.
JUDGE.