[2011] KEHC 3693 (KLR)
The court found that although the Constitution grants a right to bail, this right is not absolute and may be limited where compelling reasons exist. The pre-bail report indicated that the accused went into hiding after the alleged offence, raising concerns about her likelihood to attend trial. Additionally, the...
Source-derived case information.
- Citation
- [2011] KEHC 3693 (KLR)
- Parties
- Applicant: Republic; Defendant: Lydia Kaari
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 26 of 2009
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- bail denied; trial to proceed
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Trial, Murder Charge, Constitutional Rights, Compelling Reasons for Bail
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Lydia Kaari
Defendant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial for a charge of murder under Article 49(1)(h) of the Constitution of Kenya 2010.
- 2 Whether there are compelling reasons to deny bail to the accused.
Ratio Decidendi
The court found that although the Constitution grants a right to bail, this right is not absolute and may be limited where compelling reasons exist. The pre-bail report indicated that the accused went into hiding after the alleged offence, raising concerns about her likelihood to attend trial. Additionally, the deceased's father expressed fears that the accused's release could provoke mob justice from the community, posing a risk to her safety. These factors constituted compelling reasons to deny bail. The application for bail was therefore rejected, and the court ordered that the trial proceed to hearing.
Court Disposition
bail denied; trial to proceed
Orders
- The application for bail by the accused is rejected.
- The trial shall proceed to hearing before this court.
Full Case Text
Judgment text and source record
24 paragraphs
CRIMINAL
·Bail pending trial.
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CR. CASE NO. 26 OF 2009
REPUBLIC ......................................................................................STATE COUNSEL
VERSUS
LYDIA KAARI ...................................................................................... ACCUSED
RULING
The accused faces the offence of murder contrary to section 203 as read with 204 of the Penal Code. The accused was said to have committed the offence on 17th November 2008. Since the promulgation of the new Constitution, the courts have been inundated with applications for bail where the accused face the charge of murder amongst other capital offences. This is because the Constitution of Kenya 2010 under Article 49 (1) (h) provides as follows:-
49 (1)An arrested person has the right –
a)……………………………………………..
b)……………………………………………..
c)……………………………………………..
d)………………………………………………
e)………………………………………………
f)……………………………………………..
g)………………………………………………….
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.”
Although the Constitution does provide that bail can be granted, that right is not an absolute right. It is for that reason that I requested the probation office to do a pre-bail report to assist the court make a decision whether to release the accused. The one thing that stands out in the report made by the probation officer is that the accused after the offence was committed went into hiding. There was also report that the deceased father was of the view that if the accused if released on bail, the community may carry out mob justice against her. It is for that reason that I decline to grant the accused person the application that she seeks. It is rejected and I order that this trial do proceed to hearing before this court.
Dated, signed and delivered at Meru this 17th day of March 2011.
MARY KASANGO
JUDGE