[2013] KEHC 7072 (KLR)
The court found that the State failed to provide any substantive evidence or reasonable apprehension that the accused would interfere with witnesses if released on bond. The assertion by the prosecution was not supported by facts or particulars, and the accused had already been in custody for six months. The court...
Source-derived case information.
- Citation
- [2013] KEHC 7072 (KLR)
- Parties
- Respondent: Republic; Applicant: Kennedy Ochieng Bonyo alias Brothe
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2012
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- Bond granted with conditions.
- Legal Topics
- Bail and Bond, Presumption of Innocence, Compelling Reasons, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Kennedy Ochieng Bonyo alias Brothe
Applicant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused is entitled to bond pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether the State has demonstrated compelling reasons to deny the accused bond.
- 3 Whether the risk of interference with witnesses is substantiated.
Ratio Decidendi
The court found that the State failed to provide any substantive evidence or reasonable apprehension that the accused would interfere with witnesses if released on bond. The assertion by the prosecution was not supported by facts or particulars, and the accused had already been in custody for six months. The court emphasized that the right to bond is constitutionally protected unless compelling reasons are shown, and in this case, none were demonstrated. Therefore, the accused was entitled to bond on reasonable conditions.
Court Disposition
Bond granted with conditions.
Orders
- The accused shall execute a bond of Kshs. 3 million with two substantial sureties of similar amount.
- The sureties shall be examined and approved by the Deputy Registrar.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
Cases in Magistrate Courts
Criminal Case 35 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
REPUBLIC………………………………….………………PROSECUTOR
VERSUS
KENNEDY OCHIENG BONYO alias BROTHE..………..…….ACCUSED.
RULING
The accused person was arraigned in this court on 5. 12. 2012 charged with murder c/sec 203 as read with S. 204 of the Penal Code.
The particulars of the charge are that on 5. 11. 2011 at Central Karachuonyo Location, Rachuonyo North District in Homa Bay County, jointly with another before court murdered Thomas Mboya Okeyo.
He pleaded not guilty to the charge and has applied to be released on bond pending the trial.
His advocate, Miss Nekesa, submitted that it was his right under Article 49(1)(h) of the Constitution. She submitted that he was also entitled to be presumed innocent until proved guilty.
The state opposed the application.
According to Miss Valery, Learned State Council if the accused is released, he is likely to interfere with witnesses as the others are still at large.
In reply Miss Nekesa submitted that the accused does not know the whereabouts of the other suspects as he is in custody.
Secondly that nothing has been shown as to how he shall interfere with witnesses. She contended that that assertion is only meant to deny him of his constitutional right. She submitted that he shall abide by the terms set and urged the court to release him on bond.
I have considered the application and the submissions by both sides carefully. Article 49(1) (h) of the Constitution provides that the accused person shall be released on bond on reasonable conditions unless there are compelling reasons not to be released.
For the court to withhold bond it must be satisfied that there are compelling reasons. Here we are told that if released on bond the accused is likely to interfere with witnesses.
The State does not us why it opines that the accused is likely to interfere with witnesses. It has not shown that there is real and reasonable apprehension that he is likely to do so. It is not sufficient to merely assert it, the assertion must be shown to be reasonable. The accused was brought to court in December last year hence 6 months ago and the police must have apprehended those others referred to in Miss Valery’s submissions.
On the whole my finding is that the State has not satisfied the court that there are compelling reasons not to release the accused person.
Accordingly he is granted bond on the following conditions:-
1. That he shall execute a bond of Kshs.3 million with 2 substantial sureties of similar amount.
2. That those sureties shall be examined and approved by the Deputy Registrar.
3. That once released, the accused shall not contact or try to in any manner whatsoever attempt to contact any of the witnesses.
4. That he shall during the pendency of his trial attend court for mention once every month the first such mention being on 30. 5.2013.
5. Hearing on 18. 6.2013.
Signed and delivered at Homa Bay this…3rd……day of……May….2013.
E.N. MAINA
JUDGE.
In the presence of:
Miss Valary for the Republic
Miss Nekesa for the Accused.
Eudice Okombo Dholuo interpreter.
Accused person.
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