[2015] KEHC 3321 (KLR)
The court found that the accused persons are constitutionally entitled to bail unless compelling reasons are presented to deny such bail. The prosecution did not provide any compelling reasons. Although the court lacked a pre-bail assessment report, it recognized the need to balance the rights of the accused with...
Source-derived case information.
- Citation
- [2015] KEHC 3321 (KLR)
- Parties
- Respondent: Republic; Defendant: Kodek Otete; Defendant: Dominic Lukas Matagaro; Defendant: Joshua Elijah Msima
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 3 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- bail granted with conditions
- Judges
- CB Nagillah
- Legal Topics
- Bail and Bond, Murder Charges, Constitutional Rights of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Kodek Otete
Defendant
Dominic Lukas Matagaro
Defendant
Joshua Elijah Msima
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial for murder.
- 2 Whether there are compelling reasons to deny bail as required by Article 49(1)(h) of the Constitution.
- 3 How to balance the constitutional rights of the accused and the victim's family in granting bail.
Ratio Decidendi
The court found that the accused persons are constitutionally entitled to bail unless compelling reasons are presented to deny such bail. The prosecution did not provide any compelling reasons. Although the court lacked a pre-bail assessment report, it recognized the need to balance the rights of the accused with those of the victim's family. Weighing these considerations, the court determined that the accused should be released on a personal bond with sureties, subject to conditions ensuring their attendance at trial. The court emphasized that any default in compliance would result in immediate cancellation of the bond and accountability of the sureties.
Court Disposition
bail granted with conditions
Orders
- The accused persons are released on a personal bond of Ksh.1,000,000 with two sureties of similar amount, to be approved by the Deputy Registrar.
- The accused must attend court every month for mention of their case until hearing and disposal or further court orders.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL CASE NO.3 OF 2015
REPUBLIC
VERSUS
KODEK OTETE - 1ST ACCUSED
DOMINIC LUKAS MATAGARO - 2ND ACCUSED
JOSHUA ELIJAH MSIMA - 3RD ACCUSED
RULING
This is the application dated 9th February 2015.
The accused person is charged for murder contrary to Section 203 as read with Section 204 of the Penal Code. The particulars of the offence are as follows: On the 15th day of January 2015 at Gakero Sub-location in Gucha Sub-County within Kisii County in the Republic of Kenya, jointly with others not before court murdered MAURINE NYANCHAMA OBADIA.
The right to bond/bail is a constitutional right as envisaged by the Constitution. Article 49(1) says: “An arrested person has a right (h) to be released on bond or bail, on reasonable conditions, pending a charge or trial, unless there are compelling reasons not to be released.”
Fortunately the prosecution has no compelling reasons why the accused person should not be released on bond.
Unfortunately, the court does not have advantage of the pre-bail assessment report to guide the issue of bond/bail.
As the accused person has a constitutional protection, the victim’s family also have a constitutional protection. It is therefore incumbent upon the court to balance the rights of the accused persons and the rights of the victim family in the issuance of the bond/bail to the accused person.
In the light of the State’s submission above and in the light of the pre-bail assessment report above referred to, this court, bearing in mind the Constitutional rights of all the parties and the need for the accused person to attend court at his trial, this court, accordingly, will release the accused person on a personal bond in terms following:
A personal bond of Ksh.1,000,000/= with two sureties of similar amount. The same be approved by the Deputy Registrar of this court, on conditions that
He attends court every month for mention of his case until the hearing and disposal of his case or until further court orders
The first such mentioned to be on 31st August 2015
Any one default, the bond will be immediately cancelled and the sureties made to account.
It is so ordered.
Dated, signed and delivered in open court at Kisii this 31st day of July 2015
HON. C. B. NAGILLAH
JUDGE
In the presence of:
Sepele for State
M/S Moseti holding brief for M/S Kaburi for Accused
Samuel Omuga: court clerk