[2013] KEHC 1526 (KLR)
The court held that the applicant is entitled to bail under Article 49(1) of the Constitution unless compelling reasons are shown. The respondent's concerns about interference with witnesses and risk of absconding were not substantiated with cogent evidence. The mere fact that the applicant faces a murder charge and...
Source-derived case information.
- Citation
- [2013] KEHC 1526 (KLR)
- Parties
- Applicant: Michael Mukundi Nyaga; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 5 of 2013
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- application allowed
- Judges
- BT Jaden
- Legal Topics
- Bail Pending Trial, Murder Charge, Compelling Reasons, Constitutional Rights, Interference With Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Mukundi Nyaga
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the applicant is entitled to bail pending trial under Article 49(1) of the Constitution.
- 2 Whether there are compelling reasons to deny the applicant bail.
- 3 Whether the risk of interference with witnesses or absconding justifies denial of bail.
Ratio Decidendi
The court held that the applicant is entitled to bail under Article 49(1) of the Constitution unless compelling reasons are shown. The respondent's concerns about interference with witnesses and risk of absconding were not substantiated with cogent evidence. The mere fact that the applicant faces a murder charge and has been supplied with witness statements does not amount to compelling reasons to deny bail. The seriousness of the offence and potential punishment cannot, by themselves, negate the constitutional guarantee of bail. The court found no compelling reasons to deny bail and exercised its discretion in favour of the applicant, granting bail on specified terms.
Court Disposition
application allowed
Orders
- The applicant may be released on a Kshs. 2 Million personal bond with one surety of a like sum.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 5 OF 2013
REPUBLIC ……………………………………………………… RESPONDENT
VERSUS
MICHAEL MUKUNDI NYAGA………….............……. ACCUSED/APPLICANT
R U L I N G
The Applicant, Michael Mukundi Nyaga, is charged with two counts of murder contrary to section 203 as read with section 204 of the Penal Code (Cap 63), Laws of Kenya.
The particulars of the offence are that on the 16th day of November 2013 at Mutitu Andei Trading Centre in Kibwezi District within Makueni County murdered Joyanne Wawira Nyaga.
The Appellant was arraigned in court on 21/1/13. He pleaded not guilty. On 23/5/2013 the Applicant filed an application seeking orders that he be released on bail/bond pending the hearing of his case.
The application is supported by the affidavit sworn by the Applicant on 23/5/2013. The Applicant is apprehensive that the trial may take long due to the volume of work in the High Court. The Applicant undertakes to honour the conditions of bail/bond and not to interfere with witnesses.
The application is opposed by the State. According to the replying affidavit sworn by the Investigating Officer PC Paul Kanyeki on 29/5/2013. The Applicant has already been supplied with the statements of prosecution witnesses and there is a likelihood that he may interfere with them as they are known to him. That the charge of murder attracts a death sentence which is an incentive for the applicant to abscond.
I have considered both the application and the reply to the same. Section 49 (1) of the Constitution states as follows:-
“An arrested person has the right to be released on bond or bail, on reasonable conditions, pending the charge or trial unless there are compelling reasons not to be released.”
However, the court has discretion to grant or refuse bail depending on the circumstances of each case. The court is required to take into consideration settled principles of the law when determining whether or not to grant bail pending the hearing of a criminal case or pending the hearing of an appeal. The principles to be considered by this court in determining whether or not to grant bail were set out in Mwaura v Republic (1986) KLR 600. The said principles include the following; the nature of the offence, the strength of the evidence, the character or behavior of an accused and the seriousness of the punishment to be meted if the accused is found guilty.The primary underlying consideration is whether the accused will turn up at the appointed place and time for his trial. The court further held that in the exercise of its discretion, if certain exceptional circumstances personal to the accused exist which when weighed against the risk of the accused absconding, the balance will tilt in favour of granting bail. Another factor that the court will consider is whether the accused will interfere with witnesses if he is released on bond.
The State has not given any compelling reasons why the Applicant should not be released on bond. Compelling reasons should not be a matter of conjecture, guesswork or speculation. Being supplied with statements of prosecution witnesses is a matter of right guaranteed by the Constitution under Article 50 (2) (j). There are no cogent reasons given in support of the assertion that the Applicant is likely to interfere with witnesses. The provision for death sentence cannot be used against the Applicant as that would negate the Constitutional guarantee for bail in capital offences.
With the foregoing, I allow the application. The Applicant may be released on a Kshs. 2 Million personal bond with one surety of a like sum.
………………………………………
B. THURANIRA JADEN
JUDGE
Dated and delivered at Machakos this 20th day of September 2013.
………………………………………
B. THURANIRA JADEN
JUDGE