[2011] KEHC 2538 (KLR)
The court found that the prosecution had not demonstrated any compelling reasons to deny the applicant bail. The applicant had shown he is a family man with ties to the community, his father was willing to stand surety, and there was no evidence he would interfere with witnesses or abscond. The seriousness of the...
Source-derived case information.
- Citation
- [2011] KEHC 2538 (KLR)
- Parties
- Respondent: Republic; Applicant: David Njenga Kahiu; Defendant: Joyce Kathambi Solomon; Defendant: Samson Muigai Nguru
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 20 of 2010
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- application for bail granted
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Presumption of Innocence, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
David Njenga Kahiu
Applicant
Joyce Kathambi Solomon
Defendant
Samson Muigai Nguru
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the applicant should be granted bail pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny the applicant bail.
Ratio Decidendi
The court found that the prosecution had not demonstrated any compelling reasons to deny the applicant bail. The applicant had shown he is a family man with ties to the community, his father was willing to stand surety, and there was no evidence he would interfere with witnesses or abscond. The seriousness of the offence and the evidence so far adduced were not sufficient, in themselves, to constitute compelling reasons. The applicant's right to bail was upheld, subject to conditions to ensure attendance at trial and non-interference with witnesses.
Court Disposition
application for bail granted
Orders
- The applicant is released on bond of Kshs.500,000 with two sureties of like sum.
- The applicant is warned not to interfere with any of the witnesses.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 20 OF 2010
REPUBLIC........................................................................................................................PROSECUTOR
VERSUS
JOYCE KATHAMBI SOLOMON.....................................................................................1ST ACCUSED
SAMSON MUIGAI NGURU..............................................................................................2ND ACCUSED
DAVID NJENGA KAHIU..................................................................................................3RD ACCUSED
RULING
David Njenga Kahiu, Joyce Kathambi Solomon and Samson Muigai Nguru are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. They are alleged to have murdered Peter Njogu Gachangi on the night of 6th and 7th February 2010. They denied the offence and have been remanded in custody.
On 21/2/2011, Mr. Mongeri Advocate, counsel for the 3rd accused/applicant filed a chamber Summons pursuant to Art. 49 of the Constitution seeking to have the applicant released on bond/bail pending trial. The grounds upon which the application is brought are found on the face of the application and the supporting affidavit of the applicant sworn on 21/2/2011. He depones that he is a married man with 3 children aged between 24 years and 14 years, he is the sole breadwinner as he used to work as a Truck Driver with Swift Royal Conveyors Ltd, his father is willing to stand surety for him, he will not interfere with witnesses. Mr. Mongare relied on the case of REP V. DANSON MGUNYA CR 26/08 where J. Ibrahim released an accused person charged with murder on bail contending that all that the applicant had to show was that he will attend court when required to do so. He submitted that no evidence has been adduced to show that the applicant will abscond or likely to interfere with witnesses.
Mr. Nyakundi, learned State Counsel, opposed the application for reasons that the evidence so far tendered incriminates the applicant, he will be tempted to abscond, the offence is serious and he is also likely to interfere with witnesses.
Art. 49(2) of the Constitution gives the court discretion to grant bail in all cases where an accused is charged with an offence punishable by fine alone or imprisonment for a period not exceeding 6 months. These may be referred to as the party loses. However, under Art. 49(1) (h) the right to bail is not absolute. Bail may be denied where there are compelling reasons not to grant bail. The said compelling reasons are not provided for anywhere but the courts have made decisions setting out what they believe to be compelling reasons. The court the creteria in REP V MGUNYA MSA CR 26/08and NKU CR 115/08, REPUBLIC V KABULIT.
This is a serious case of murder which carries a sentence of death upon conviction. This matter is partly heard with 5 witnesses having testified and the 6th stood down for want of time. Though Mr. Nyakundi submitted that there is already evidence incriminating the applicant and he is likely to abscond, that is not the position. Even though that could be one of the grounds to be considered, the applicant is still presumed to be innocent till proven otherwise.
Though the applicant did not disclose where he resides, he has demonstrated that he is a family man with a wife and children, his father is ready and willing to stand surety for him. As pointed out earlier, the prosecution has not demonstrated that the applicant is likely to interfere with witnesses. I find that there are no compelling reasons to deny the applicant bail and I hereby grant the application.
The applicant be released on bond of Kshs.500,000/- with 2 sureties of like sum. The applicant is warned not to interfere with any of the witnesses. He will attend court every 14 days for mention until further orders of this court.
DATED and DELIVERED this 13th day of April 2011.
R.P.V. WENDOH
JUDGE
PRESENT:
Accused/applicant present – in person.
Nyakundi for the State.
Kennedy – Court Clerk.