[2010] KEHC 298 (KLR)
The court held that while the Constitution provides for the right to bail even for capital offences such as murder, this right is not absolute and is subject to the absence of compelling reasons. In this case, the prosecution's unrebutted affidavit established that the accused posed a security threat to witnesses if...
Source-derived case information.
- Citation
- [2010] KEHC 298 (KLR)
- Parties
- Respondent: Republic; Applicant: Kennedy Ireri alias Chuma; Applicant: Obadiah Mugendi; Applicant: Other Accused Persons
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 12 of 2010
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- application for bail dismissed
- Judges
- J Karanja
- Legal Topics
- Bail Application, Compelling Reasons, Witness Interference, Right to Liberty
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Kennedy Ireri alias Chuma
Applicant
Obadiah Mugendi
Applicant
Other Accused Persons
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the accused persons are entitled to bail under Article 49(1)(h) of the Constitution despite being charged with murder.
- 2 Whether there are compelling reasons to deny the accused persons bail, including potential interference with witnesses and seriousness of the offence.
Ratio Decidendi
The court held that while the Constitution provides for the right to bail even for capital offences such as murder, this right is not absolute and is subject to the absence of compelling reasons. In this case, the prosecution's unrebutted affidavit established that the accused posed a security threat to witnesses if released, which constitutes a compelling reason to deny bail. The seriousness of the offence and the potential sentence further reinforced the risk of flight and interference with the trial process. The court found that the accused's right to liberty could be lawfully limited to protect the security of witnesses and the proper administration of justice. Consequently, the...
Court Disposition
application for bail dismissed
Orders
- The application for bail by Accused 1 and Accused 4 is dismissed.
- The accused persons shall remain in custody pending trial.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CRIMINAL CASE NO. 12 OF 2010
REPUBLIC…………………………………...…………PROSECUTION
VERSUS
KENNEDY IRERI ALIAS CHUMA & 3 OTHERS..……ACCUSED
R U L I N G
The Accused persons herein are charged with the offence of murder contrary to Section 203 as read with Section 204 of the penal code. The offence has hitherto been unbailable but by dint of article 49(1) (h) of the new Constitution, the same is bailable. Under that article, an Accused person
“Is entitled to be released on bond or bail, on reasonable conditions, pending a charge or trial unless there are compelling reasons not to be released.”
From the very wording of the above article, release on bail is not an absolute, automatic right. The Constitution subjects the same to absence or lack of compelling reasons not to be released. It will be noted that the word compelling is not defined and the same is therefore left to the courts and the parties seeking to invoke that article in their favour.
In this case, Accused I Kennedy Ireri has applied for bail through his counsel. According to his counsel, there are no compelling reasons as to why he cannot be released on bail. He is also said to be disabled. The stick he was using as a walking aid was detained by the police as an exhibit and so he has been made to walk on all fours and that amounts to being subjected to inhuman treatment while in custody. On this point however, I wish to state that every Accused person has a right not be subjected to any inhuman or degrading treatment. In this case however, the state has nothing to do with the alleged inhuman treatment, reason being that the walking aid cannot be returned to the Accused since the same is still being held as an exhibit and it has yet to be produced in court.
Secondly the state has stated through the affidavit by the Investigating officer that the Prison Department has no problem with the Accused’s relatives providing another walking aid for him.
This therefore does not amount to a compelling reason to allow him to be released on bond.
I will therefore consider his application for bail along with that of Accused 4 Obadiah Mugendi. Both Counsel have not given the court any other reasons as to why the 2 shall be released on bond.
The Investigating Officer has sworn an affidavit maintaining that if released, the Accused persons may interfere with the witnesses. He has also undertaken to expedite the trial by bringing to court all the remaining witnesses. He has also stated that the offence is of a serious nature and the Accused persons face a serious sentence upon conviction.
I have considered the application by both accused persons along with the contents of the Affidavit by the investigations officer.
I would like to state for the record that this court has previously released an accused person on bond for murder after moving itself suo motu.I do believe therefore that every accused person is entitled to be released on bail even for the offence of murder as provided for in the constitution. This nonetheless is subject to the absence of compelling circumstances that might warrant the denial of the said right. Each case must therefore be considered in it own circumstances.
The Investigations Officer has deponed that the Accused persons are a security threat to the witnesses if released on bail.
The averment was not interrogated or rebutted by for the Applicants. Threat to witnesses would in my view amount to a forceful or compelling reason for the court not to grant bail.
The nature of the sentence they are likely to face is also in my view an irresistible or overpowering reason for the Accused persons not to avail themselves to court for trial if released.
The prosecution has yet to call other witnesses whose security as stated by the investigating officer is likely to be threatened if the Accused persons are out on bail.
If the accused’s right to liberty will therefore compromise the right of the witnesses to security of their person, then this court has every reason to limit the Accused exercise of such a right.
I therefore find it mete and just to refuse the application for the Accused persons release on bail in this matter. The application for bail for Accused 1 & 4 is hereby dismissed.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 1st day of December 2010
In presence of:- Mr. Mugambi for Accused 1 and all Accused persons. Ms. Matiru also present for State. Mr. Githinji Karuri for Momanyi for Accused 4 also present.