[2016] KEHC 848 (KLR)
The court found that bail is a constitutional right for accused persons and that no compelling reasons were presented to justify denying bail to the 1st, 2nd, and 4th accused. The court also noted that the 3rd accused had already been released on bond, and there was no evidence or submission from the State to oppose...
Source-derived case information.
- Citation
- [2016] KEHC 848 (KLR)
- Parties
- Applicant: Republic; Respondent: Nicholas Muasya Bernard; Respondent: Sera Mwende; Respondent: Muli Ngina; Respondent: Patrick Muia Kaindi
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 27 of 2013
- Procedural Posture
- Criminal Case / Ruling on Bail Applications
- Outcome
- applications for bail allowed
- Judges
- DO Ogembo
- Legal Topics
- Bail Pending Trial, Right to Bond, Compelling Reasons, Constitutional Rights of Accused
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Nicholas Muasya Bernard
Respondent
Sera Mwende
Respondent
Muli Ngina
Respondent
Patrick Muia Kaindi
Respondent
Procedural Posture
Criminal Case / Ruling on Bail Applications
Legal Issues
- 1 Whether the 1st, 2nd, and 4th accused persons are entitled to bail pending trial.
- 2 Whether there are compelling reasons to deny bail to the applicants.
- 3 What are reasonable and attainable terms for bail or bond in the circumstances.
Ratio Decidendi
The court found that bail is a constitutional right for accused persons and that no compelling reasons were presented to justify denying bail to the 1st, 2nd, and 4th accused. The court also noted that the 3rd accused had already been released on bond, and there was no evidence or submission from the State to oppose the applications. The judge emphasized that bail or bond terms must be reasonable and attainable, as excessively harsh or unattainable terms would effectively deny the constitutional right. Consequently, the court allowed the applications and set bond terms that were considered reasonable and consistent with the right to bail.
Court Disposition
applications for bail allowed
Orders
- The 1st, 2nd, and 4th accused persons are released on bond of Kshs. 500,000 with one surety of similar amount each.
- The accused persons shall report to their nearest police station on the 10th of every month commencing on 10th December, 2016.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 27 OF 2013
REPUBLIC ......................................................................................................PROSECUTOR
VERSUS
NICHOLAS MUASYA BERNARD .................................................................1ST ACCUSED
SERA MWENDE………………………………………………………………2ND ACCUSED
MULI NGINA…………………………………………………………………..3RD ACCUSED
PATRICK MUIA KAINDI…………………………….......…………………….4TH ACCUSED
RULING OF THE COURT
1. There are two (2) Notice of Motion applications before the court. The first one is filed herein on 22nd January, 2016 and is filed by the 4th accused person seeking of the main prayer that the 4th accused person be released on bail pending the hearing and determination of the case.
2. The second Notice of Motion is filed herein on 26th July, 2016 by the 1st accused and 2nd accused persons also seeking bail pending hearing and determination of the case.
3. The applications are based on the grounds that the applicants are Kenyan citizens and are not flight risk, and that they are ready and willing to abide by any conditions that may be set by the court as the bail term. They further state that their c0-accused the 3rd accused has already been released on bail. Both applications are supported by the affidavits of the applicants which are on record.
4. There is no indication on record that the state opposes the application. Parties were directed to file submissions to the two (2) applications. Only the 4th accused person filed submissions.
5. Be that as it may, this court notes that bail or bond is now a constitutional right of every accused person, and that a court on its own motion can grant such a right. However, where the grant is disputed, it has to be shown that there are substantial and compelling reasons why the right should be denied. In the two (2) applications before the court no submissions have been made to disclose any compelling reasons why the applicant’s cannot be released on bail or bond.
6. Record also show that the 3rd co-accused was released on bond of Kshs. 1 million on 24th November, 2015. There is therefore no compelling reasons to deny bond. What perhaps this court should consider is the terms of the said bond. For bond or bail to regain its usefulness it must be based on terms which are reasonable and which make it attainable to the accused persons. If terms of bail or bond are made unreasonable harsh or unattainable it could amount to denial of the very right that is guaranteed by the constitution. With that observation in mind, I allow the two (2) applications and herewith release the 1st, 2nd and 4th accused persons on bond in the following terms;
i. Bond of Kshs. 500,000= with one surety of similar amount.
ii. The accused persons shall report to their nearest police station on 10th of every month commencing on 10th of December, 2016.
Orders accordingly.
DATED AND DELIVERED AT MACHAKOS THIS 16TH DAY OF NOVEMBER, 2016.
E. OGOLA
JUDGE
In the presence of;
Mr. Machogu for State
Mr. Ngolya holding brief for Muia for 2nd accused
Mr. Ngolya holding brief for Mwangangi for 1st accused
M/S Koech holding brief for M/S Wambua for 3rd accused