[2011] KEHC 3269 (KLR)
The court found that the prosecution's affidavit opposing bail was invalid due to non-compliance with statutory requirements, specifically the lack of a date as required by section 5 of the Oaths and Statutory Declarations Act. With no valid opposition, the court considered the seriousness of the offence but noted...
Source-derived case information.
- Citation
- [2011] KEHC 3269 (KLR)
- Parties
- Applicant: Republic; Defendant: Peter Ireri Kimotho; Defendant: John Mbogo Kimotho; Defendant: Stella Njoki Mwangi; Defendant: Stephen Kathuri Kimotho
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Murder Case 24 of 2009
- Procedural Posture
- Murder Trial / Bail Application
- Outcome
- bail_granted_in_part
- Judges
- MA Warsame
- Legal Topics
- Bail Application, Murder Charge, Compelling Reasons, Affidavit Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic
Applicant
Peter Ireri Kimotho
Defendant
John Mbogo Kimotho
Defendant
Stella Njoki Mwangi
Defendant
Stephen Kathuri Kimotho
Defendant
Procedural Posture
Murder Trial / Bail Application
Legal Issues
- 1 Whether the accused persons, particularly the second accused, should be granted bail pending trial for a murder charge.
- 2 Whether the undated affidavit filed by the prosecution is valid and can be relied upon to oppose bail.
- 3 Whether there are compelling reasons to deny bail to the accused persons under the current constitutional framework.
Ratio Decidendi
The court found that the prosecution's affidavit opposing bail was invalid due to non-compliance with statutory requirements, specifically the lack of a date as required by section 5 of the Oaths and Statutory Declarations Act. With no valid opposition, the court considered the seriousness of the offence but noted that the law now permits bail for capital offences unless compelling reasons are shown. The court found no compelling reasons to deny bail to the second accused, Stella Njoki Mwangi, especially given her responsibilities as a mother to young children, which made her an unlikely flight risk. The court therefore granted her bail on reasonable terms, while allowing the other...
Court Disposition
bail_granted_in_part
Orders
- The second accused, Stella Njoki Mwangi, is released on her own bond of KES 200,000 plus one surety of like amount to appear in court.
- The other accused persons may renew their bail applications later in the course of hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA
AT EMBU
MURDER 24 OF 2009
REPUBLIC...............................................................................................................PROSECUTOR
VERSUS
PETER IRERI KIMOTHO.........................................................................................1ST ACCUSED
JOHN MBOGO KIMOTHO.....................................................................................2ND ACCUSED
STELLA NJOKI MWANGI......................................................................................3RD ACCUSED
STEPHEN KATHURI KIMOTHO .......................................................................... 4TH ACCUSED
JUDGMENT
Stella Njoki Mwangi who is the second Accused in the amended information dated 3/11/2010 is jointly charged with 2 others for the offence of Murder contrary to section 203 as read with section 204 of the penal code. The case has not taken off yet. On 16/11/2010 counsel for the Accused persons made an application for bail “and more particularly” f or Accused 2. He said that the second Accused is a mother of a 2 year old child and other children who are in school. He informed the court that the said children are suffering without her.
On behalf of the 2 other Accused persons, he only said that they too have families to take care of.
In response to the application for bail, the state through one corporal Manyorio Simotwo swore an affidavit filed in court on 30/11/2010.
I have nonetheless looked at the ‘Affidavit’ and noted that the same is not dated. This is contrary to the provisions of section 5 of the Oaths and Statutory Declarations Act (Cap. 15 of the Laws of Kenya), which requires an affidavit to indicate the date the oath was taken.
The said ‘Affidavit’ is therefore not compliant with the law and I hereby strike it off. That would therefore mean that the bail application is not opposed. The current constitution of this nation now allows for release of Accused persons on bail without discriminating against those charged with capital offences. The only caveat is that there should not be any complellable reasons to militate against the granting of bond.
Even without the said Affidavit, this court cannot ignore the fact that the offence the Accused persons are charged with is a serious one. It carries a mandatory death sentence. That in itself is in my considered view enough reason for one to be tempted to jump bail if released. No evidence has been tendered before this court so far to enable the court to assess the evidence against the Accused persons. I cannot therefore grant bond blindly just because the law provides for the same. As far as accused 2 is concerned, I have been told that she has a 2 year old toddler and other children to take care of. That is a heavy responsibility which would make her an unlikely candidate to jump bail. The children especially at that young age need the love, care and comfort of their mother. I do not find any compelling reasons for me to deny her bond.
In the circumstances, I order that the 2nd Accused – Stella Njoki Mwangi be released on her own bond of kshs.200,000/= plus one like surety to appear. The other Accused persons can renew their bail application later in the course of hearing.
W. KARANJA
JUDGE
Signed by the above but dated and delivered at Embu this 5th day of April 2011 by the undersigned.
M. WARSAME
JUDGE