[2022] KEHC 16179 (KLR)
The court found that there were compelling reasons to deny bail to the accused. The pre-bail report was unfavorable, indicating palpable anger at the locus in quo and a risk to the accused's security. The accused was previously rescued from a lynch mob, is an undocumented immigrant with no fixed abode or meaningful...
Source-derived case information.
- Citation
- [2022] KEHC 16179 (KLR)
- Parties
- Applicant: Republic; Respondent: Sarah Namono
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E069 of 2022
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- Bail denied; trial to be fast-tracked.
- Judges
- K Kimondo
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Presumption of Innocence, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Sarah Namono
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether there are compelling reasons to deny the accused bail pending trial.
- 2 Whether the accused's security and risk of absconding justify denial of bail.
Ratio Decidendi
The court found that there were compelling reasons to deny bail to the accused. The pre-bail report was unfavorable, indicating palpable anger at the locus in quo and a risk to the accused's security. The accused was previously rescued from a lynch mob, is an undocumented immigrant with no fixed abode or meaningful family ties in Kenya, and her family has relocated. The charge is grave (murder), and the security of witnesses would be jeopardized by her release. These factors collectively met the threshold for compelling reasons under the Constitution and statute, justifying denial of bail at this stage. The court, however, directed that the trial be fast-tracked in the interests of justice.
Court Disposition
Bail denied; trial to be fast-tracked.
Orders
- The application for bail is declined at this stage.
- The trial shall be fast-tracked.
Full Case Text
Judgment text and source record
29 paragraphs
Republic v Namono (Criminal Case E069 of 2022) [2022] KEHC 16179 (KLR) (Crim) (9 December 2022) (Ruling)
Neutral citation: [2022] KEHC 16179 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Criminal
Criminal Case E069 of 2022
K Kimondo, J
December 9, 2022
Between
Republic
Prosecutor
and
Sarah Namono
Accused
Ruling
1. The accused seeks bail pending trial.
2. Her learned counsel, Mr. Khavagali, submitted that there are no compelling reasons to deny the motion. Reliance was made on Articles 49 and 50 of the Constitution, as read together with section 123 A(1) of the Criminal Procedure Code.
3. The republic opposed the application through a replying affidavit made by the investigating officer, Issa Ali Haret, and sworn on 10th November 2022. In a summary, it is averred that the accused is a Ugandan residing unlawfully in Kenya; that her husband and children have relocated; that she has no fixed abode; and, that her security would not be guaranteed.
4. On 24th November 2022, I heard further arguments from the learned counsel for the accused and the republic.
5. I take the following view of the matter. No witnesses have taken to the stand yet. It follows that the accused is presumed innocent at this moment. Under Article 49 (1) (h) of the Constitution, as read together with section 123 A(1) of the Criminal Procedure Code, she is entitled to bail unless there be compelling circumstances.
6. Regarding the phrase, compelling reasons, I am well guided by the decision of Gikonyo J in Republic v Joktan Mayende & 3 others, High Court, Bungoma Criminal Case 55 of 2009 [2012] eKLR where the learned judge stated-But more light is shed by the Black's Law Dictionary 7th Edition. And accordingly, the phrase compelling reasons would denote reasons that are forceful and convincing as to make the court feel very strongly that the accused should not be released on bond. Bail should not therefore be denied on flimsy grounds but on real and cogent grounds that meet the high standard set by the Constitution.
7. The overarching objective of bail is to ensure the accused attends trial. See Michael Juma Oyamo & another v Republic [supra]; Muraguri v Republic [1989] KLR 181; R v Fredrick Ole Leliman & 4 others, Nairobi High Court Criminal Case 57 of 2016 [2016] eKLR.
8. When I juxtapose those principles against the materials before the court, I find as follows. Firstly, the pre-bail report filed on 24th November 2022 by M. M. Abima, Probation Officer is unfavourable to the accused. In particular, it concludes that there is palpable anger at the locus in quo, and that her security would be at risk.
9. That issue is reinforced at paragraph 9 of replying affidavit: The accused was rescued by the police from a lynch mob and taken to MSF Hospital. The deposition states that the accused and her family were “undocumented” immigrants; and, that the deceased was buried in Uganda.
10. Secondly, the family was residing in Mathare area. The accused’s husband and their children have since relocated from Kenya. I am then not confident that she has fixed abode in Kenya or any meaningful family ties.
11. Thirdly, the accused faces the grave charge of murder. The Director of Public Prosecutions informs the High Court that on the 23rd September 2022 at 2130 hours at White Castle area within Nairobi County she murdered Grace Kibone.
12. Fourthly, I note that the deceased was the co-wife of the accused; and, that one of the proposed witnesses was attacked while trying to protect the deceased. The security of such a witness would also be jeopardized by the release of the accused.
13. All those are compelling reasons for denial of bail. I decline to grant bail at this stage. However, in the interests of justice, I direct that that this trial shall be fast-tracked.It is so ordered.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 9TH DAY OF DECEMBER 2022. KANYI KIMONDOJUDGERuling read virtually on Microsoft Teams in the presence of-Accused.Mr. Khavagali for the accused instructed by KKLaw Advocates.Ms. Kigira for the Republic instructed by the Office of the Director of Public Prosecutions.Mr. E. Ombuna, Court Assistant.