[2021] KEHC 5488 (KLR)
The court found that there were no compelling reasons advanced by either the prosecution or the defence to deny the accused bail. The court emphasized that the primary purpose of bail is to secure the accused's attendance at trial, and that the seriousness of the charge and the potential punishment are relevant but...
Source-derived case information.
- Citation
- [2021] KEHC 5488 (KLR)
- Parties
- Respondent: Republic; Applicant: Magdalene Nyathira Mburu
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E036 of 2021
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- Bail granted with conditions.
- Judges
- MM Kasango
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Murder Charge, Bond Terms
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Magdalene Nyathira Mburu
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the accused bail.
- 3 What conditions, if any, should be attached to the grant of bail in a murder case.
Ratio Decidendi
The court found that there were no compelling reasons advanced by either the prosecution or the defence to deny the accused bail. The court emphasized that the primary purpose of bail is to secure the accused's attendance at trial, and that the seriousness of the charge and the potential punishment are relevant but not determinative in the absence of compelling reasons. The accused's personal circumstances, including being a mother of young children, having a fixed abode, and the willingness of her family to stand as sureties, further supported the grant of bail. Accordingly, the accused was granted bail with conditions to ensure her attendance and non-interference with witnesses.
Court Disposition
Bail granted with conditions.
Orders
- The accused is released on her own bond of Kshs.500,000 with two sureties of similar amount.
- The accused shall not interfere with prosecution’s witnesses.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL CASE NO. E036 OF 2021
REPUBLIC…………………………………………..……..…..….PROSECUTOR
VERSUS
MAGDALENE NYATHIRA MBURU..………….………….…………ACCUSED
RULING
1. MAGDALENE NYATHIRA MBURUwas charged with the offence of murder. On 23rd June, 2021 she pleaded not guilty. The accused has applied for bail pending her trial.
2. The prosecution did not oppose her bail application except that the prosecution sought that the terms of accused’s release be strict in view of the seriousness of the charge she faces.
3. Article 49(1)(h) of the Constitution provides that unless there are compelling reasons why an arrested person should not be granted bail/bond, bail/bond should be granted pending their trial. There were no compelling reasons given either by prosecution or the defence.
4. In considering the accused’s application, it is important to bear in mind that the purpose of granting bail/bond is to ensure that an accused does attend trial when required to do so. Further, the court in setting the terms of release on bail/bond should bear in mind the seriousness of the charge the accused faces. These two elements were discussed in the case REPUBLIC VS. ROBERT ZIPPOR NZILU (2018) eKLR as follows:-
“13. While agreeing with Justice Ibrahim Tanko Muhammad’sjudgment,Justice Niki Tobi gave an illuminating and persuasive decision when he said:-
“The main function of bail is to ensure the presence of the accused at the trial… Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria. The Working Party on bail procedure in Magistrate’s Courts in the United Kingdom said in paragraph 22 of the Report:-
‘There are a number of other considerations to be taken account in deciding a bail application, but in general they are not in themselves reasons for granting or refusing bail, but indicators of the likelihood or otherwise of the defendant’s appearance.’…”
10. Gravity of the offence as a consideration was appreciated by Mbogholi Msagha, J in Criminal Application No. 319 of 2002 Priscilla Jemutai Kolonge vs. Republic (unreported) at page 3, wherein he held as follows:-
‘However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive.’”
5. The accused was described as being a mother of young children. She is of fixed abode and her family is willing to stand as sureties. In view of the above and because there are no compelling reasons to deny the accused bail, the accused will be granted bail.
DISPOSITION
6. MAGDALENE NYATHIRA MBURU is hereby released on her own bond of Kshs.500,000/= with two sureties of similar amount.
7. The accused shall not interfere with prosecution’s witnesses.
RULING DATED, SIGNED and DELIVERED at KIAMBU this 5TH day of MAY, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant : Ndege
Accused : present
For the Accused: Mr. Muguria
Respondent: Ms. Kathambi
COURT
Ruling delivered virtually.
MARY KASANGO
JUDGE