[2013] KEHC 7080 (KLR)
The court held that the prosecution failed to demonstrate any compelling reasons to deny the accused persons bond. The only reason advanced by the prosecution was the alleged risk to the accused if released, but no evidence was provided to substantiate this claim. The court emphasized that the main consideration in...
Source-derived case information.
- Citation
- [2013] KEHC 7080 (KLR)
- Parties
- Applicant: Republic; Defendant: Moses Ochieng Matinde & 2 Others
- Court
- High Court
- Court Station
- High Court at Nyandarua
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 1 of 2013
- Procedural Posture
- Criminal Case / Ruling on Bond Application Pending Trial
- Outcome
- Bond granted to all accused persons on specified terms.
- Legal Topics
- Bail and Bond, Compelling Reasons, Pretrial Release, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Moses Ochieng Matinde & 2 Others
Defendant
Procedural Posture
Criminal Case / Ruling on Bond Application Pending Trial
Legal Issues
- 1 Whether the accused persons are entitled to bond pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bond to the accused persons.
Ratio Decidendi
The court held that the prosecution failed to demonstrate any compelling reasons to deny the accused persons bond. The only reason advanced by the prosecution was the alleged risk to the accused if released, but no evidence was provided to substantiate this claim. The court emphasized that the main consideration in bond applications is whether the accused will attend trial, and there was no suggestion or evidence that the accused were likely to abscond. Consequently, the court found no compelling reason to withhold bond and granted the application, subject to stringent terms considering the seriousness of the offence.
Court Disposition
Bond granted to all accused persons on specified terms.
Orders
- Each accused person shall execute a bond of KES 2,000,000 with one surety of like amount.
- Deputy registrar to examine and approve the sureties.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
Cases in Magistrate Courts
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REPUBLIC………………………………….………………PROSECUTOR
VERSUS
MOSES OCHIENG MATINDE & 2 OTHERS..………......…….ACCUSED
RULING.
The 3 accused persons all members of one family are charged with murder C/Sec 203 as read with S. 204 of the penal code. They all pleaded not guilty and have through their Advocate G.S. Okoth applied for bond pending trial.
The application was canvassed before me on 12. 3.2013. Mr. Ongoso, Advocate for the accused persons prayed that the accused persons be released on bond on reasonable terms. He told the court that the 1st and 3rd accused persons are spouses and that they have left their children one of who is suckling at home. He stated that the 2nd accused is a student at Lambwe secondary school and supplied documents to prove that. He submitted that there is no likelihood of violence were the accused persons to be released on bond as the affected families have since reconciled.
Further that there is no likelihood of their jumping bail.
The application was however opposed. Miss Valery – State Counsel – submitted that granting the accused persons bond may be risky to them. That however should the court do so then it must be on terms that they are not likely to abscond and that they attend court at regular trials.
In reply Mr. Ongoso contended that the state counsel was speculating that the accused will not attend court. He submitted that the accused shall furnish sureties who shall also compel them to attend court. That on the issue of the society not accepting the accused persons back is neither here nor there. He urged me to allow the application.
I have considered the submissions by both sides carefully. The law now is that all offences are bailable unless there are compelling reasons.
- Article 49(1) (h) of the constitution, it cannot be emphasized that the duty to demonstrate those compelling reasons is upon the prosecution.
In the instant case only one reason has been advanced by the state and that is that it may be risky to them. The circumstances of the offence are that the accused persons committed this offence when an attacker known to them attacked the 1st accused. So is that a compelling reason? This must be considered bearing in mind that the main consideration in an application ought to be whether the accused shall turn up at the trial.
In my view a compelling reason would be one that carries so much weight as to leave the court with no alternative than to withhold bond. It is my finding that the reason advanced is not one such reason. Indeed the state counsel has no demonstrable evidence that the accused persons would be at risk. Neither did she suggest that they are likely to abscond.
Accordingly and taking the seriousness of the offence into account I do grant the 3 accused persons bond in the following terms:-
1. That each accused person shall execute a bond of Kshss.2 (two) million with one surety of like amount.
2. Deputy registrar to examine/Approve the sureties.
3. That pending the hearing and determination of their case, they shall attend court once a month.
4. Hearing on 25. 4.2013.
Ruling dated, signed and delivered at Homa Bay this 28th day of March 2013.
E.N. MAINA
JUDGE.
In the presence of:
Eudice Okombo Dholuo interpreter.
Miss Valery for the Republic
Mr. Ongoso for the Accused.
Accused person.
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