[2018] KEHC 1005 (KLR)
The court found that the right to bail is constitutionally guaranteed but not absolute, and must be considered in light of the circumstances of each case. The prosecution did not present any compelling reasons to deny bail, and the pre-bail report was generally favourable, notwithstanding the victim's father's...
Source-derived case information.
- Citation
- [2018] KEHC 1005 (KLR)
- Parties
- Respondent: Republic (Director of Public Prosecutions); Applicant: Mustafa Ramadhan Alieth
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 68 of 2018
- Procedural Posture
- Criminal Case / Bail Application Ruling
- Outcome
- bail_granted
- Judges
- DN Musyoka
- Legal Topics
- Bail Application, Murder Charge, Pre Trial Release, Compelling Reasons, Presumption of Innocence
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic (Director of Public Prosecutions)
Respondent
Mustafa Ramadhan Alieth
Applicant
Procedural Posture
Criminal Case / Bail Application Ruling
Legal Issues
- 1 Whether the accused is entitled to bail pending trial for a charge of murder.
- 2 Whether there exist compelling reasons to deny the accused bail as per Article 49 of the Constitution.
- 3 What conditions, if any, should be attached to the grant of bail.
Ratio Decidendi
The court found that the right to bail is constitutionally guaranteed but not absolute, and must be considered in light of the circumstances of each case. The prosecution did not present any compelling reasons to deny bail, and the pre-bail report was generally favourable, notwithstanding the victim's father's opposition. Applying the principles from Article 49 of the Constitution and the cited case law, the court was satisfied that the accused met the threshold for grant of bail. Accordingly, the accused was ordered to be released on bail pending trial upon execution of a bond with sureties.
Court Disposition
bail_granted
Orders
- The accused person is released on bail pending trial upon executing a bond of Kshs. 700,000.00 with two sureties of like amount.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CRIMINAL CASE NO. 68 OF 2018
REPUBLIC.................................DIRECTOR OF PUBLIC PROSECUTIONS
VERSUS
MUSTAFA RAMADHAN ALIETH...................................................ACCUSED
RULING
1. Mustafa Ramadhan Alieth is charged with murder contrary to section 203 of the Penal Code, Cap 63, Laws of Kenya, as read with section 204 of the Penal Code. The particulars of the offence allege that on 17th day of October 2018 at Ekama B Village, Mayoni Sub-Location of Matungu Sub-County in Kakamega County, he murdered Nipha Matendechere alias Nipha Nasimiyu alias Jennifer Atwoli. He pleaded not guilty to the charge on 12th November 2018.
2. He applied, through Ms Oduor, his defence counsel, to be admitted to bail. The state did not object to the release of the accused person on bail, but asked the court to call for a pre-bail report before bail could be considered. Whereupon the court ordered the Probation Department to file a pre-bail report on him.
3. Pre-trial bail is a constitutional right available for all criminal offences by virtue of Article 49 of the Constitution of Kenya, 2010. The right is, however, not an absolute right. It is available at the discretion of the court to be granted based on the circumstances of each case. Article 49 of the Constitution of Kenya, 2010, states that a court may admit an accused person on reasonable bail terms, and that bail may be denied where there exist compelling reasons. Section 123 of the Criminal Procedure Code has similar provisions.
4. The principles for determining applications were set out in Nganga vs. Republic (1985) KLR 451 and Mazrui vs. Republic (1985) KLR 279. As a general principle, an accused person should be admitted to bail unless it is shown by the prosecution that there exist grounds for denying the same. The general principle is underpinned by the presumption of innocence. It will usually be denied where it is shown that (a) the accused will fail to turn up at his trial or to surrender to custody, or (b) the accused may commit further offences, or (c) he will obstruct the course of justice and (d) the accused would lose more by absconding. It will also be denied if it would not be favourable for the accused to go back to his own community without risk to his own life or limb.
5. The Probation Department has complied with the directions mentioned in paragraph 2 here above, by filing the requisite report, dated 7th December 2018. I have perused through the said a pre-bail report. The report is generally favourable, although the father of the victim is not in favour of his being admitted to bail. However, I have considered the general circumstances of the matter as stated in the probation report and the prosecution file of evidence, as against the principles stated in in Article 49 of the Constitution and in Nganga vs. Republic (supra) and Mazrui vs. Republic (supra) on grant of bail, and I am satisfied that this case meets the threshold for grant of bail.
6. I shall accordingly order that the accused person herein be realised on bail pending trial upon his executing a bond of Kshs. 700, 000. 00 with two sureties of like amount.
DELIVERED, DATED AND SIGNED IN OPEN COURT THIS 24TH DAY DECEMBER 2018
W MUSYOKA
JUDGE