[2014] KEHC 344 (KLR)
The court found that, despite the accused's entitlement to bond under Article 49(1)(h) of the Constitution, the prosecution had demonstrated compelling reasons to deny bond at this stage. These included the risk of interference with witnesses (notably the accused's own child), the real danger to the accused's life...
Source-derived case information.
- Citation
- [2014] KEHC 344 (KLR)
- Parties
- Respondent: Republic; Applicant: Margaret Kukutie Nairenge
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 102 of 2012
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- Bond denied at this stage; liberty to re-apply when circumstances permit.
- Legal Topics
- Bail and Bond, Compelling Reasons, Murder Offence, Witness Tampering
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Margaret Kukutie Nairenge
Applicant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused should be granted bond pending trial for the offence of murder.
- 2 Whether there are compelling reasons to deny bond to the accused under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that, despite the accused's entitlement to bond under Article 49(1)(h) of the Constitution, the prosecution had demonstrated compelling reasons to deny bond at this stage. These included the risk of interference with witnesses (notably the accused's own child), the real danger to the accused's life if released to her matrimonial home due to community hostility, and the high probability of absconding given the severity of the charge and potential sentence. The court concluded that denying bond was in the accused's own interest and for the integrity of the trial process. The court left open the possibility of reconsidering the application when circumstances change,...
Court Disposition
Bond denied at this stage; liberty to re-apply when circumstances permit.
Orders
- Bond application by the accused is denied for now.
- Defence counsel may re-apply for bond when tempers have cooled and emotions have subsided.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 102 OF 2012
REPUBLIC……………………………………………………..STATE
VERSUS
MARGARET KUKUTIE NAIRENGE………………………ACCUSED
RULING
1. This is an application by the defence counsel for bond for the accused person in an offence of murder under S.203 as read with S.204 of the Penal Code, Chapter 63 Laws of Kenya. The Constitution of Kenya, under article 49(1)(h) permits the release of the accused on bond or bail, on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.
2. The defence cites the probation report, Ref No. TRM/PBR/08/2014. The reports admits that the community in which the murdered husband came from, and thus the wife- the accused’s marital home is, and would be very hostile to the accused, may be molested and even harmed if she goes back to her matrimonial home. The report suggests that, in view of this, there is an arrangement to have the accused be accommodated and her maternal or her maiden home.
3. However, the investigating officer gives several compelling reasons why the accused despite the probation report should not be granted bond. That is:
The accused would temper with the witnesses, and thus intervene with the evidence in her case, one such witness is her own child.
If released the accused’s own life will be in danger especially at her matrimonial home, which situation is exacerbated by the fact that the accused is a Kisii and the victim- her husband – is a maasai.
The accused if convicted upon trial would suffer a maximum sentence of death as provided by the law- hence a high probability she could abscond and go into hiding.
4. I have taken note of both submissions by both counsels. Weighing one thing against the other, I deny bond to the accused for now and urge the defence counsel to re-apply for bond on behalf of the accused when tempers have cooled down and, emotions have subsided. The court will in its discretion, reconsider the application, most likely positively in favour of the accused. This refusal should not be taken negatively, it is largely, perhaps for the interest of the accused person. The court does not want harm to come to the accused prematurely. Freedom to the accused may attract harm to her.
5. Orders accordingly.
Dated and delivered at KISII this 8th day of October,2014
C.B. NAGILLAH,
JUDGE.
In the presence:-
Mr. Otieno for the state
Mariari holding brief Sagwe for the accused
Edwin Mongare Court Clerk.