[2018] KEHC 7218 (KLR)
The court found that bail is a constitutional right for all accused persons, and that the prosecution bears the burden of demonstrating compelling reasons for denial. In this case, the State did not oppose bail and confirmed that there was no probability of the accused interfering with witnesses. The court was...
Source-derived case information.
- Citation
- [2018] KEHC 7218 (KLR)
- Parties
- Respondent: Republic; Applicant: Mohammed Edin Hassanow alias Choke; Applicant: Ibrahim Adan Mohammed alias Domal; Applicant: Mohammed Ibrahim Maalim Ali alias Gerile
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 7 of 2018
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- applications for bail allowed
- Legal Topics
- Bail Pending Trial, Constitutional Rights of Accused, Compelling Reasons for Bail, Conditions for Release
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Mohammed Edin Hassanow alias Choke
Applicant
Ibrahim Adan Mohammed alias Domal
Applicant
Mohammed Ibrahim Maalim Ali alias Gerile
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial under the Constitution and Criminal Procedure Code.
- 2 Whether there are compelling reasons to deny bail to the accused persons.
Ratio Decidendi
The court found that bail is a constitutional right for all accused persons, and that the prosecution bears the burden of demonstrating compelling reasons for denial. In this case, the State did not oppose bail and confirmed that there was no probability of the accused interfering with witnesses. The court was satisfied, based on the affidavits and submissions, that the accused were not a flight risk and would not interfere with prosecution witnesses. Consequently, the court saw no reason to deny bail and allowed the applications, setting terms for release on bond or cash bail and imposing conditions to ensure attendance and non-interference with witnesses.
Court Disposition
applications for bail allowed
Orders
- Each accused to be released on signing own bond of Kshs 600,000 with one surety of similar amount.
- Alternatively, each accused may be released on depositing in court a cash bail of Kshs 800,000.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CRIMINAL CASE NO. 7 OF 2018
REPUBLIC..............................................................................................PROSECUTOR
VERSUS
MOHAMMED EDIN HASSANOW alias CHOKE...............1ST ACCUSED/APPLICANT
IBRAHIM ADAN MOHAMMED alias DOMAL..................2nd ACCUSED/APPLICANT
MOHAMMED IBRAHIM MAALIM ALI alias GERILE..3RD ACCUSED/APPLICANT
RULING
1. Before me are three applications brought by way of Notice of motion under Section 123, 124 and 125 of The Criminal Procedure Code, and Article 24 (1) ( a) as well as Article 49 ( 1) (h) of The Constitution of Kenya, all dated 18th day of April, 2018 Each of the accused persons filed a separate application in which all the three appear as applicants, the only difference being that each application contains a supporting affidavit from only one accused person.
2. The prayers are as follows:
(i) That the accused persons’ be released on bail pending hearing and determination of the case herein.
(ii) Any other order in favour of the accused.
3. As I have said above, each application is supported by a separate affidavit of one accused person, which desirable the stations of life and occupations of the accused, all of whom come from Mandera County.
4. At the hearing of the applications, Mr. Nzili for the accused submitted that the accused had been in custody for about 18 days now, and because of the rainy weather, it had taken them long to be brought to Garissa Court. Counsel stated that the accused persons were ready to attend Court, as when required and could also report to a Police station when granted bail. Counsel also stated that they would not interfere with witnesses, nor were they a flight risk.
5. Mr. Balongo for the State, informed the court that he was in contact with the Investigating Officer who could not come to court because he was unwell. However, Mr. Balongo submitted that investigations had been complete and that the Investigating Officer had told him that there was no probability of the accused persons interfering with witnesses. Counsel concluded by stating that the state did not have compelling reasons to oppose bail.
6. Bail is a Constitutional right under our present Constitution and is available to all accused persons, even if they have been charged with capital offences.
7. Courts have held that the burden is on the prosecution to demonstrate to the court, the compelling reasons if any for denial of bail.
8. I have considered the contents of the affidavits filed in support of the applications, and the submissions of both the defence, and prosecuting counsel and I am assured that the accused persons will not interfere with prosecution witnesses. The State also does not oppose bail thus, I find no reason to deny any of the 3 accused persons’ their right to bail. I thus allow the applications and order as follows:-
(i) Each of the three (3) accused will be realized on signing his own bond of Kshs; 600,000/= with one surety of similar amount. In the alternative they can be released on depositing in court a cash bail of Kshs; 800,000/= each.
(ii) Each of the three (3) accused persons will attend the hearing of the case, and all mentions thereto.
(iii) They will not interfere with prosecution witnesses.
Dated and Delivered at Garissa this 20th April, 2018
George Dulu
JUDGE