[2022] KEHC 16012 (KLR)
The court found that bail is a constitutional right under Article 49(1)(h) of the Constitution, and that the presumption of innocence favors release on bail unless compelling reasons are shown. The seriousness of the charge (murder) was acknowledged as a factor, but no specific compelling reasons were advanced by...
Source-derived case information.
- Citation
- [2022] KEHC 16012 (KLR)
- Parties
- Respondent: Republic; Applicant: David Wahome Mwangi
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E018 of 2022
- Procedural Posture
- Criminal Case / Ruling on Bail Application
- Outcome
- Bail granted to the accused on terms.
- Judges
- MM Kasango
- Legal Topics
- Bail Application, Presumption of Innocence, Compelling Reasons, Pretrial Release
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
David Wahome Mwangi
Applicant
Procedural Posture
Criminal Case / Ruling on Bail Application
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny the accused bail in a murder case.
Ratio Decidendi
The court found that bail is a constitutional right under Article 49(1)(h) of the Constitution, and that the presumption of innocence favors release on bail unless compelling reasons are shown. The seriousness of the charge (murder) was acknowledged as a factor, but no specific compelling reasons were advanced by the prosecution to justify denial of bail. The pre-bail probation report was positive, and there was no evidence of risk of absconding or interference with witnesses. Accordingly, the court exercised its discretion to grant bail to the accused on reasonable terms.
Court Disposition
Bail granted to the accused on terms.
Orders
- The accused, David Wahome Mwangi, is ordered to be released from custody pending trial on his own bond of Kshs 500,000 and one surety of similar amount.
Full Case Text
Judgment text and source record
21 paragraphs
Republic v Mwangi (Criminal Case E018 of 2022) [2022] KEHC 16012 (KLR) (1 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16012 (KLR)
Republic of Kenya
In the High Court at Kiambu
Criminal Case E018 of 2022
MM Kasango, J
December 1, 2022
Between
Republic
Prosecutor
and
David Wahome Mwangi
Accused
Ruling
1. David Wahome Mwangi is charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. He pleaded not guilty. He applied to be released on bond/bail pending the conclusion of his trial.
2. Bail is a constitutional right which is only restricted by compelling reasons why bail should not be granted Article 49(1)(h) of theConstitution provides:-'An arrested person has the right:-(h)To be released on bond or bail, conditions, pending a charge or trial, unless there are compelling reasons not to be released.'
3. Further, the bail and bond policy guideline provides:'The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible. The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts.'
4. The seriousness of the offence is also a consideration in bail application. In the caseRepublic Vs Sabit Mamuour Deng & Another (2020) eKLR the court stated thus:-'Thus, in Watoro vs Republic [1991] KLR 220, it was held thus:The seriousness of the offence in terms of the sentence likely to follow a conviction has been held repeatedly to be a consideration in exercising discretion. If the presumption of innocence were to be applied in full, there would never be a remand in custody the seriousness of the offence has a clear bearing which the court ought to bear in mind on the factors influencing the mind of an accused facing a charge in respect of the offence as to whether it would be a good thing to skip or not, and such a possibility is not out of question: it has happened before, and in similar cases the presumption of innocence cannot rule out consideration of the seriousness of the offence and the sentence which would follow on conviction.'
5. I have considered the pre-bail probation report. It is positive for the release of the accused. There are no compelling reasons brought forth which can lead accused to be denied bail. Accordingly, the accused will be released on terms.
Disposition 6. The order of this Court in respect to the application for bail/bond is that David Wahome Mwangi is ordered to be released from custody pending his trial on his own bond of Kshs 500,000 and one surety of similar amount.
RULING DATED and DELIVERED at KIAMBU this 1st day of DECEMBER, 2022. MARY KASANGOJUDGEIn the presence ofCoram:Court Assistant : Mourice/JuliaAccused David Wahome Mwangi :- presentFor accused : - Mr. Gakunju:- presentFor State :- Mr. GacgariaRULING delivered virtually.MARY KASANGOJUDGE