[2021] KEHC 5732 (KLR)
The court found that there were no compelling reasons to deny the accused persons bail. The seriousness of the charge and the potential punishment were considered, but the prosecution did not present evidence of a specific risk of absconding or interference with witnesses. The court emphasized that the primary...
Source-derived case information.
- Citation
- [2021] KEHC 5732 (KLR)
- Parties
- Respondent: Republic; Applicant: Nnoruka Kenneth Azubuike; Applicant: Udenze Kenneth Odikpo
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Criminal Case E019 of 2021
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- bail granted with conditions
- Judges
- MM Kasango
- Legal Topics
- Bail Conditions, Compelling Reasons, Flight Risk, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Nnoruka Kenneth Azubuike
Applicant
Udenze Kenneth Odikpo
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether there are compelling reasons to deny bail to the accused persons.
- 3 What conditions, if any, should be imposed if bail is granted.
Ratio Decidendi
The court found that there were no compelling reasons to deny the accused persons bail. The seriousness of the charge and the potential punishment were considered, but the prosecution did not present evidence of a specific risk of absconding or interference with witnesses. The court emphasized that the primary purpose of bail is to secure the accused's attendance at trial. Given the accused are foreign nationals, the court imposed conditions to mitigate flight risk, specifically requiring the deposit of passports and substantial sureties. Accordingly, bail was granted on terms designed to ensure the accused's presence at trial while respecting their constitutional rights.
Court Disposition
bail granted with conditions
Orders
- Each accused shall be released on their own bond of Kshs. 1,000,000 with two sureties of similar amount.
- Each accused shall deposit their passport at the court before release.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KIAMBU
CRIMINAL CASE NO. E019 OF 2021
BETWEEN
REPUBLIC.............................................................PROSECUTOR
VERSUS
1. NNORUKA KENNETH AZUBUIKE
2. UDENZE KENNETH ODIKPO..................................ACCUSEDS
RULING
1. NNORUKA KENNETH AZUBUIKEand UDENZE KENNETH ODIKPO have applied for bail. They were charged on 26th April 2021 with the offence of murder. They pleaded not guilty.
2. Article 49(1)(h) of the Constitution provides that an arrested person has the right to be released on bond or bail on reasonable conditions pending a charge or trial, unless there are compelling reasons not to be released.
3. The accused are Nigerian nationals and understandably DPP requested the court to consider to have the accused deposit their passports in court as a condition of their release.
4. The purpose of granting bail is to ensure an accused does attend his/her trial. This indeed was stated in a case citing another case that is REPUBLIC VS. ROBERT ZIPPOR NZILU (2018) eKLR as follows:-
“13. While agreeing with Justice Ibrahim Tanko Muhammad’sjudgment,Justice Niki Tobi gave an illuminating and persuasive decision when he said:-
“The main function of bail is to ensure the presence of the accused at the trial… Accordingly, this criterion is regarded as not only the omnibus one but also the most important. As a matter of law and fact, it is the mother of all the criteria. The Working Party on bail procedure in Magistrate’s Courts in the United Kingdom said in paragraph 22 of the Report:-
‘There are a number of other considerations to be taken account in deciding a bail application, but in general they are not in themselves reasons for granting or refusing bail, but indicators of the likelihood or otherwise of the defendant’s appearance.’”
5. Justice Mbogholi Msagha (as he then was) stated, and I concur with is Lordship’s holding in the case PRISCILLA JEMUTAI KOLONGE VS. REPUBLIC, which case was cited in the case of REPUBLIC VS. ROBERT ZIPPOR NZILU(supra) as follows:-
“However, the nature of the charge or offence and the seriousness of the punishment if the applicant is found guilty must be considered in applications of this nature. I subscribe to the observation that where the charge against the accused is more serious and punishment heavy, there are more probabilities and incentive to abscond, whereas in case of minor offences, there may be no such incentive.”
6. With that in mind, and because there are no compelling reasons to deny the accused the order they seek, I grant the following orders:-
(a) Each of the accused shall be released on their own bond of Kshs.1 million (one million) with two sureties each of similar amounts.
(b) Each of the accused shall deposit their passports at this Court before their release.
RULING DATED AND DELIVERED AT KIAMBU THIS 1ST DAY OF JULY, 2021.
MARY KASANGO
JUDGE
Coram:
Court Assistant: Ndege
Accused: both present
For Accused: Mr. King
DPP: Mr. Kasyoka
COURT
RULING delivered virtually.
MARY KASANGO
JUDGE