[2010] KEHC 350 (KLR)
The court held that the accused, charged with a capital offence, is not entitled to bail pending trial due to statutory prohibitions and the existence of compelling reasons. Section 123 of the Criminal Procedure Code expressly prohibits the granting of bail to persons charged with murder, treason, robbery with...
Source-derived case information.
- Citation
- [2010] KEHC 350 (KLR)
- Parties
- Respondent: Republic; Applicant: Moses Kenu Ole Pemba
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 60 of 2007
- Procedural Posture
- Criminal Case / Application for Bail Pending Trial
- Outcome
- application for bail denied
- Judges
- MJA Emukule
- Legal Topics
- Bail Pending Trial, Capital Offences, Compelling Reasons, Constitutional Rights, Criminal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Moses Kenu Ole Pemba
Applicant
Procedural Posture
Criminal Case / Application for Bail Pending Trial
Legal Issues
- 1 Whether the accused charged with a capital offence is entitled to bail pending trial under the Constitution and Criminal Procedure Code.
- 2 Whether there are compelling reasons to deny bail to the accused in this case.
Ratio Decidendi
The court held that the accused, charged with a capital offence, is not entitled to bail pending trial due to statutory prohibitions and the existence of compelling reasons. Section 123 of the Criminal Procedure Code expressly prohibits the granting of bail to persons charged with murder, treason, robbery with violence, or attempted robbery with violence. The court further reasoned that the seriousness of the offence, the potential for breaches of the peace, and societal interests in not condoning the taking of human life constitute compelling reasons to deny bail. The court also noted that only in exceptional circumstances, such as where the accused is a child, might bail be considered....
Court Disposition
application for bail denied
Orders
- The application to release the accused on bond/bail pending trial is denied.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 60 OF 2007
REPUBLIC……………………………………..PROSECUTOR
VERSUS
MOSES KENU OLE PEMBA…….....…………………ACCUSED
RULING
Mr. Cheche, learned counsel for the accused has applied for release of the accused on bond/bail, pending his trial. Counsel relied upon the provisions of Section 49(1)(a) of the Constitution which requires that any accused who is charged with an offence punishable by imprisonment for not less six months should be released on bond/bail - unless there are compelling reasons for denying the accused that right.
Mr. Cheche submitted that there are no precedents on this question, and wanted this court to set such precedent by releasing the accused.
I am unable to fall into the temptation of releasing the accused on bond/bail pending his trial. My reasons are the following.
The accused is charged with a capital offence. Under Section 72(5) of the repealed Constitution, no person accused of murder, treason, and other capital offences was to be released on bail.
Currently under Section 123 of the Criminal Procedure Code, the courts are prohibited from granting bond/bail to any person who is charged with offence of murder, treason, robbery with violence or attempted robbery with violence and I would add a further category, persons charged terrorism or offences of mass killings. In my opinion these are all compelling reasons why an accused such as the applicant in this case ought not to be released on bail pending his trial.
There are also subsidiary reasons why an accused facing charges for which punishment is death ought not to be granted bail - unless there are exceptional circumstances, such that the accused is a child - who under the Children Act, cannot be sentenced to death. In addition society does not condone the taking away of human life, and the pleasure of mixing with the accused in streets. Such a person may well become a victim of his own freedom and release may lead to serious breaches of the peace.
For those reasons, I am unable to grant the application to release the accused on bond/bail pending appeal.
Dated, signed and delivered at Nakuru this 11th day of October 2010
M. J. ANYARA EMUKULE
JUDGE