[2013] KEHC 2787 (KLR)
The court held that the applicant's constitutional right to a fair trial, including access to prosecution witness statements, does not in itself entitle him to bail pending appeal. The court found that the applicant was not a party to the referenced criminal case at Makueni Law Courts, but was jointly charged with a...
Source-derived case information.
- Citation
- [2013] KEHC 2787 (KLR)
- Parties
- Respondent: Republic; Defendant: Kioko Kitili Mwongela; Applicant: David Musembi Nyamai
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 27 of 2012
- Procedural Posture
- Criminal Case / Ruling on Application for Bail Pending Appeal
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Bail Pending Appeal, Fair Trial Rights, Prosecution Witness Statements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Kioko Kitili Mwongela
Defendant
David Musembi Nyamai
Applicant
Procedural Posture
Criminal Case / Ruling on Application for Bail Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to bail pending appeal.
- 2 Whether denial of prosecution witness statements affects the bail application.
- 3 Whether compelling reasons exist to deny bail.
Ratio Decidendi
The court held that the applicant's constitutional right to a fair trial, including access to prosecution witness statements, does not in itself entitle him to bail pending appeal. The court found that the applicant was not a party to the referenced criminal case at Makueni Law Courts, but was jointly charged with a co-accused who was. After considering all affidavits and arguments, the court was not convinced that the applicant merited release on bail pending appeal. The court reaffirmed its earlier ruling that the prosecution had provided compelling reasons to deny bail, and therefore dismissed the application.
Court Disposition
application dismissed
Orders
- The application for bail pending appeal is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 27 OF 2012
REPUBLIC …………………………………………………… RESPONDENT
VERSUS
KIOKO KITILI MWONGELA …………………….………1st ACCUSED
DAVID MUSEMBI NYAMAI ………… 2ND ACCUSED/APPLICANT
R U L I N G
Following the ruling dated 22/7/2013 and the application for review of the same, I have considered the averments in the further affidavit sworn by the Applicant, David Musembi Nyamai on 19/3/2013.
The Applicant has a Constitutional right to a fair trial which entails adequate time and facilities to prepare a defence. This includes being supplied with copies of statements of prosecution witnesses. Whether the Applicant has been supplied with statements or not should not per se be an issue in determining a bail application.
The Applicant in the further affidavit has denied any knowledge of the matters raised in paragraph No. 7 of the replying affidavit concerning the deceased herein having been mentioned as a witness in Criminal Case No. 191/2012 at Makueni Law Courts. It is clear from the replying affidavit referred to that the Applicant was not a party to the said Criminal Case at Makueni Law Courts but his co-accused, Kioko Kitili. However the Applicant herein is jointly charged with the said Kioko Kitili.
After considering the application, the reply and the further affidavit, I am still not convinced that the Applicant merits to be released on bail pending appeal. I still stand by the ruling herein that the reasons given by the prosecution are compelling to warrant the denial of bail. The application is dismissed.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 25thday of July 2013.
………………………………………
B. THURANIRA JADEN
JUDGE