[2018] KEHC 4360 (KLR)
The court found that the prosecution had demonstrated compelling reasons to deny bail at this stage, based on the probation report and the affidavit of the investigating officer. These reasons included the risk of the accused absconding, the possibility of interference with witnesses, and potential confrontation...
Source-derived case information.
- Citation
- [2018] KEHC 4360 (KLR)
- Parties
- Appellant: Republic; Respondent: Mwanzia Musembi
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 200 of 2017
- Procedural Posture
- Criminal Trial / Ruling on Bail Application
- Outcome
- application for bail dismissed
- Judges
- CM Kariuki
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Murder Charge, Pretrial Detention
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Appellant
Mwanzia Musembi
Respondent
Procedural Posture
Criminal Trial / Ruling on Bail Application
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49 of the Constitution of Kenya.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail to the accused.
- 3 Whether there is a risk of interference with witnesses or absconding if bail is granted.
Ratio Decidendi
The court found that the prosecution had demonstrated compelling reasons to deny bail at this stage, based on the probation report and the affidavit of the investigating officer. These reasons included the risk of the accused absconding, the possibility of interference with witnesses, and potential confrontation with the deceased's family. The accused did not rebut these allegations either verbally or by affidavit. Consequently, the court held that the circumstances did not favor the grant of bail or bond and dismissed the application.
Court Disposition
application for bail dismissed
Orders
- The application for bail/bond by the accused is dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCR NO. 200 OF 2017
REPUBLIC ................................................................ APPELLANT
-VERSUS-
MWANZIA MUSEMBI ........................................ RESPONDENT
RULING
INTRODUCTION
1. The accused person face a charge of murder contrary to Section 203 as read with Section 204 Penal code Cap 63.
2. In that on 25/06/2016, at Kiboko village, Makindu Sub-county, Makueni County murdered Florence Ndunge Mulwa. He pleaded not guilty and matter was fixed for hearing on 02/10/2018.
3. Meanwhile, the accused has sought to be released on bond pending trial.
4. The prosecution has opposed the release of accused on bail/bond. The court ordered the probation officer to file a pre-bond report (PBR) which was filed and dated 25/06/2018.
5. The police have also filed an affidavit in support of the denial of accused release on bail/bond.
6. The family members are apprehensive that the accused may abscond once released. Further the fear that deceased was his wife where they had five children, might attempt him to go for the children for marriage from his in-laws and a confrontation may arise.
7. There is no guarantee that he will not interfere with the witnesses. In an affidavit sworn on 31/07/2018, the investigation officer reiterates the above information which is contained in probation report.
8. The accused on his defence assures court that he will abide by any reasonable conditions the court will attach to the grant of bail/bond.
9. Under Article 49 of the Constitution of Kenya, the accused is entitled to Pre-trial Bond. Except where there are compelling reasons are adduced to warrant denial of the same.
10. It is incumbent upon the prosecution to demonstrate the availability of the compelling grounds.
11. Among the grounds discernible from the probation report and the affidavit by the investigation officer, are the possibilities of interference with witnesses and absconding by the accused.
12. The accused has not verbally and or via affidavit rebutted the above two documents in court.
13. The court finds that at this stage the circumstances obtaining do not favour grant of bail/bond. The application is thus dismissed.
SIGNED, DATED AND DELIVERED THIS 20TH DAY OF SEPTEMBER 2018, IN OPEN COURT.
………………………………
C. KARIUKI
JUDGE