[2018] KEHC 6493 (KLR)
The court found that the strict bond terms initially imposed were based on allegations of interference with witnesses, but these allegations were directed at the 2nd accused, not the 1st accused who sought variation. There being no compelling reasons against the 1st accused, and in the interest of equality and...
Source-derived case information.
- Citation
- [2018] KEHC 6493 (KLR)
- Parties
- Respondent: Republic; Applicant: Patrick Kirimi Muketha; Defendant: Alfred Munyua
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 40 of 2014
- Procedural Posture
- Criminal Case / Ruling on Application to Vary Bond Terms
- Outcome
- application allowed
- Judges
- A Mabeya
- Legal Topics
- Bail and Bond, Variation of Bond Terms, Compelling Reasons, Constitutional Rights, Interference With Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Patrick Kirimi Muketha
Applicant
Alfred Munyua
Defendant
Procedural Posture
Criminal Case / Ruling on Application to Vary Bond Terms
Legal Issues
- 1 Whether the bond terms imposed on the 1st accused should be varied or reviewed.
- 2 Whether there are compelling reasons to deny the 1st accused a variation of bond terms.
- 3 Whether the initial strict bond terms were justified in relation to the 1st accused.
Ratio Decidendi
The court found that the strict bond terms initially imposed were based on allegations of interference with witnesses, but these allegations were directed at the 2nd accused, not the 1st accused who sought variation. There being no compelling reasons against the 1st accused, and in the interest of equality and fairness, the court held that the bond terms for the 1st accused should be varied to match those of the other accused. The court exercised its discretion under Article 49(1)(h) of the Constitution to ensure that bond terms are reasonable and attainable, thereby upholding the applicant's constitutional rights.
Court Disposition
application allowed
Orders
- The bond terms for the 1st accused are varied.
- The 1st accused may be released on a cash bail of KShs. 50,000 with a surety of KShs. 300,000.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CRIMINAL CASE NO. 40 OF 2014
REPUBLIC................................PROSECUTION/ RESPONDENT
VERSUS
PATRICK MUKETHA......................1STACCUSED/APPLICANT
ALFRED MUNYUA.................................................2ND ACCUSED
RULING
1. This application is brought by the 1st applicant by way of a chamber summons dated 2nd March 2018. The applicant seeks for orders to have his bond terms varied or reviewed.
2. The grounds upon which the summons is grounded are set out in the body of the summons and the affidavit sworn by Patrick Kirimi Muketha, the Applicant, on 2nd March 2018. He avers that he was released on a bond of Kshs. 1 Million with two sureties of similar amount, who are his mother and father. The other accused was released on lesser terms and the second surety was allowed to deposit Kshs. 50,000/= because he was unable to raise the bond. That 2nd surety, his mother, wishes to have her title released to her so that she can sub-divide her land to distribute to her children. She is ready to deposit cash bail in place of the title deed. He asserted that he will faithfully attend court until the case is concluded.
3. The application was opposed by the prosecution. Mr. Namiti, Learned Counsel for the state told the court that at the time the bond was fixed, there were serious allegations of the 2nd accused interfering with witnesses. This was what led to the strict terms of the bond being imposed.
4. Article 49 (1) (h) of the Constitution vests discretion upon the court to judge whether the reasons advanced before it amount to compelling reasons upon which an applicant may be denied bail or bond.
5. Before the accused persons’ bond terms were reinstated, there were allegations of interference of which they were warned against by the court and to keep away from the prosecution witnesses.
6. In the case of Republic v Milton Kabulit& 6 Others [2011] eKLR it was held:-
“I understand the principal purpose for the grant of bond or bail is to reinforce cardinal principle of the criminal law procedure as is enshrined in Section 40(2)(a) of the Constitution that an accused is presumed innocent until the contrary is proved, and unless there are compelling reasons for not doing so, (S. 49(1)(h)), pending such trial to be released on bond or bail.”
7. If there are no compelling reasons then bail or bond should be granted on reasonable terms. In Republic v Nicholas Muasya Bernard & 3 others [2016] eKLR, the court held:-
“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.”
8. According to Mr. Namiti the serious allegations of interference were against the 2ndAccused. The prosecution made no mention of the 1st accused taking into consideration he is the one who wishes to have his terms reviewed.
9. In view of the foregoing, I find no reason why the application should not be allowed. However, for equality, I will impose the very same terms like those imposed for the other two accused. The bond terms are varied. The 1st accused may be released on a cash bail of KShs. 50,000/-with a surety of Kshs. 300,000/-.
DATEDand DELIVERED at Meru this 30th day of May, 2018.
A. MABEYA
JUDGE