[2016] KEHC 1466 (KLR)
The court found that although the pre-bail reports were favourable to the accused, the unchallenged evidence from the Investigations Officer that the accused went into hiding after the offence constituted a compelling reason to deny bail. The court emphasized that the primary consideration in bail applications is...
Source-derived case information.
- Citation
- [2016] KEHC 1466 (KLR)
- Parties
- Applicant: Republic; Defendant: Patrick Ithalii Baragu; Defendant: James Muriithi Ntonja
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 31 of 2016
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- bail denied; accused to remain in remand pending trial
- Judges
- RPV Wendoh
- Legal Topics
- Bail Pending Trial, Flight Risk, Compelling Reasons, Presumption of Innocence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Patrick Ithalii Baragu
Defendant
James Muriithi Ntonja
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial under Article 49 of the Constitution.
- 2 Whether there are compelling reasons to deny the accused persons bail, specifically the risk of flight and interference with witnesses.
Ratio Decidendi
The court found that although the pre-bail reports were favourable to the accused, the unchallenged evidence from the Investigations Officer that the accused went into hiding after the offence constituted a compelling reason to deny bail. The court emphasized that the primary consideration in bail applications is the likelihood of the accused attending trial. Since the accused failed to respond to the allegation of going underground to avoid arrest, the court was not satisfied that they would honour bond terms. Therefore, the risk of flight outweighed the presumption of innocence and the right to bail, justifying continued remand.
Court Disposition
bail denied; accused to remain in remand pending trial
Orders
- The applications for bond by both accused are declined.
- The accused shall remain in remand pending hearing of the case.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 31 OF 2016
REPUBLIC …………………………………...............… PROSECUTOR
VERSUS
PATRICK ITHALII BARAGU …………………………..… 1ST ACCUSED
JAMES MURIITHI NTONJA .......................................... 2ND ACCUSED
RULING
Patrick Ithalii Baragu and James Muriithi Ntonja are jointly charged with the offence of murder contrary to Section 203 as read with Section 204 of the Penal Code. They have filed applications dated 18/8/2016 and 8/9/2016 respectively, seeking to be released on bond pending trial.
Accused 1 deponed that he has a fixed place of abode in Antuambui Sub-Location where he does farming; that he will be ready to abide by any terms that the court may impose; that he has suffered injuries i.e. broken leg and needs help of his family and that his right to bail is being infringed by the continued incarceration.
Accused 2 deponed that the offence was committed way back in 2015 and he was not arrested till August 2016 and yet he was just at home and hence he is not a flight risk; that he is willing to abide by any bond terms that the court will impose.
The applications were opposed and the Investigations Officer, PC Johnstone Gitau swore a replying affidavit in which he recounted inter alia that the murder took place on 26/2/2016 but the accused went into hiding till they were arrested on 30/5/2016 and 19/8/2016 respectively, several months later and that they are therefore a flight risk. He also deponed that the key witnesses including Mary Ciarundu who also swore an affidavit are apprehensive that if the accused are released, their lives may be in danger.
The court called for pre-bail reports which I have considered along with the affidavits sworn by the State and the accused.
The accused have a Constitutional right to bond because they are presumed innocent till proved guilty. The accused will only be denied bond if there are compelling reasons to do so. Whereas the pre-bail reports are favourable to the accused being released on bond, yet the Investigations Officer has deponed that the accused are flight risks in that they went underground after the offence was committed. There has been no response to that allegation. The key consideration in an application for bond is that the accused will turn up for trial. If indeed the accused went underground to avoid arrest, there cannot be guarantee that they will honour the bond terms.
For that reason alone, I decline to grant the accused bond. They will remain in remand pending hearing of the case.
DATED, SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER, 2016.
R.P.V. WENDOH
JUDGE
10/11/2016
PRESENT
Mr. Mulochi for State
Ibrahim/Peninah, Court Assistants
Both Present, Accused