[2016] KEHC 319 (KLR)
The court found that the prosecution failed to provide evidence to support the claim that the accused was a flight risk due to lack of a fixed abode. The prosecution did not file a replying affidavit or present any evidence beyond submissions from the bar. The court held that the seriousness of the offence, without...
Source-derived case information.
- Citation
- [2016] KEHC 319 (KLR)
- Parties
- Applicant: Republic; Defendant: Florence Wanjiru Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 65 of 2015
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- bail_granted
- Judges
- FM Mutuku
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Flight Risk, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Florence Wanjiru Kamau
Defendant
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the third accused, Florence Wanjiru Kamau, should be granted bail pending trial.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail, specifically the risk of flight due to lack of fixed abode.
Ratio Decidendi
The court found that the prosecution failed to provide evidence to support the claim that the accused was a flight risk due to lack of a fixed abode. The prosecution did not file a replying affidavit or present any evidence beyond submissions from the bar. The court held that the seriousness of the offence, without more, does not constitute a compelling reason to deny bail. In the absence of proven compelling reasons, and considering the accused's health and prolonged pre-trial detention, the court granted bail on specified terms.
Court Disposition
bail_granted
Orders
- The accused shall be released on a bond of KES 1,000,000 with one surety of similar amount.
- Alternatively, the accused may pay a cash bail of KES 200,000.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL CASE NO. 65 OF 2015
REPUBLIC………………..………......................PROSECUTOR
VERSUS
KELVIN KAMAU GATORA….………………......1ST ACCUSED
ISMAIL WAINAINA MUTHONI……………...…2ND ACCUSED
FLORENCE WANJIRU KAMAU……………….3RD ACCUSED
RULING
This is a ruling in respect of the application by the third accused person Florence Wanjiru Kamau. She is seeking to be admitted to bail pending the hearing and determination of this case. She is charged jointly with the 1st and 2nd accused persons with the murder of Stephen Karanja Karumba which is alleged to have occurred on 26th June 2015 at Ndunyu Market in Dagoretti with Nairobi County. The application is dated 17th November 2016. It is supported by the grounds on the face of the application and in the supporting affidavit sworn by the 3rd accused.
The grounds in support are that the accused has been in custody since June 2015 and that the hearing of the case has not commenced due to several adjournments in the instance of the prosecution; that she is ailing and on Anti-Retroviral drugs and is unable to receive good care in custody due to lack of proper diet and that she will obey and abide by the conditions of bail that this court will set.
The prosecution opposed the application for bail submitting that the offence the accused is facing is a serious one; that there is no evidence that the accused has a fixed abode and therefore she is a flight risk.
In response to the brief submissions by the prosecutor Mr. Saenyi for the accused submitted that seriousness of the offence has not been a compelling reason to deny an accused person bail and that the police have the particulars of the accused and know where she comes from.
I have considered the application. The Prosecution Counsel did not file a replying affidavit in support of her opposition to this application. She submitted from the bar.
Bail is a right that is guaranteed in the Constitution (see Article 49 (1) (h)). The right is not absolute and can be limited where compelling reasons are proved on a balance of probabilities. The allegations that the accused is a flight risk since she does not have a fixed abode have not been supported by evidence and remain just allegations. The prosecution counsel did not have a replying affidavit or any other evidence verifying these allegations. Having considered her brief submissions I am not persuaded that there are compelling reasons to make me decline this application. Consequently, I will and do hereby allow the same on the following terms and conditions:
(i) The accused shall be released on a bond of One Million Kenya Shillings (Kshs 1,000,000) with one surety of similar amount.
(ii) In the alternative, the accused is at liberty to pay cash bail of Kenya Shillings Two Hundred Thousand (Kshs 200,000).
(iii) She will attend court on the days of hearings and mentions of this case and any other time that her attendance may become necessary as the court may order.
(iv) She is cautioned against doing anything that may amount to subversion of justice in respect of this case.
Orders shall issue accordingly.
Dated, signed and delivered this 22nd December 2016.
S. N. Mutuku
Judge