[2014] KEHC 3449 (KLR)
The court found that the accused persons, particularly the 1st accused, posed a risk of absconding due to a prior history of jumping bail and lack of a permanent residence. The social inquiry report indicated that the accused changed residence after being suspected of the offences and that the community was hostile...
Source-derived case information.
- Citation
- [2014] KEHC 3449 (KLR)
- Parties
- Applicant: Republic; Defendant: Rasto Wanyama Masinde alias David Alukoye Chesoli; Defendant: George Simiyu Nabikoto alias Saitoti
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 24 of 2014
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- Bond application declined; accused to remain in custody during trial.
- Judges
- A Mabeya
- Legal Topics
- Bail and Bond, Compelling Reasons, Pretrial Detention, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Rasto Wanyama Masinde alias David Alukoye Chesoli
Defendant
George Simiyu Nabikoto alias Saitoti
Defendant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused persons are entitled to be released on bond pending trial.
- 2 Whether there are compelling reasons to deny bond to the accused persons.
Ratio Decidendi
The court found that the accused persons, particularly the 1st accused, posed a risk of absconding due to a prior history of jumping bail and lack of a permanent residence. The social inquiry report indicated that the accused changed residence after being suspected of the offences and that the community was hostile due to the nature of the alleged crimes, which involved members of the same family. The court held that these factors—risk to personal security, previous failure to adhere to bond terms, and the likelihood of not attending trial due to the seriousness of the charges—constituted compelling reasons to deny bond. The constitutional right to bail is not absolute and may be...
Court Disposition
Bond application declined; accused to remain in custody during trial.
Orders
- The application for bond is hereby declined.
- The accused persons are to remain in custody during trial.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT BUNGOMA
CRIMINAL CASE NO.24 OF 2014
REPUBLIC................................................................................PROSECUTOR
VRS
RASTO WANYAMA MASINDE
alias DAVID ALUKOYE CHESOLI..............................................1ST ACCUSED
GEORGE SIMIYU NABIKOTO
alias SAITOTI............................................................................2ND ACCUSED
RULING
1. The accused, Rasto Wanyama Masinde alias David Alukoye Chesoli and George Simiyu Nabikoto alias Saitoti are charged with four (4) counts of murder. They have applied for bond. The State has however, opposed thatapplication on the ground that the security of the accused is not assured as members of the public are agitated; that the 1st accused has a tendency of jumping bail; that he had been charged in BGM CM CR. Case No.1465 of 2013 wherein after being released he jumped bail. Finally, Mr. Kibellion for the State submitted that the two accused have no known permanent residence and that the 1st accused had disappeared after the offences in this Case werecommitted and was arrested living in a bush in Webuye. In his view, these are compelling reasons which warrant the denial of bond to the two. The defence left the issue to the court to decide in the face of the allegations by the State.
2. Article 49 (1) (h) of the Constitution of Kenya provides that:
“49. (1) An arrested person has the right-
(h) 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. From the foregoing, it is clear that bail for an accused person during his trial is a Constitutional right which can only be curtailed if there are compelling reasons. The Constitution has not given what those compelling reasons are. These in my view, can only be deduced from the very purpose for which the right to bail exist. Bail or bond enables an accused person to secure his liberty and continue with his normal life in society or the community in which he lives during the pendency of his trial. Bail or bond is therefore meant to secure the accuseds attendance during the trial.
4. In this regard, any reason or circumstance that may affect the attendance of the accused at his trial may, in my view, be termed as a compelling reason. Some of these may be; the disappearance of the accused; personal security or health of the accused; the likelihood of interference with the administration of justicesuch as influencing the witnesses. Others may be, the personal conduct of an accused such as where one is a habitual offender or where an accused has previously broken his bond terms or jumped bail. I hold this view because while exercising its judicial authority, a court has always to weigh between therights of the accused and the public interest. In serious offences, it is good practice to order or seek social inquiry on the accused before arriving at a well balanced decision.
5. In this Case, the bail assessment and social inquiry reports dated 23rd July, 2014 show that the 1st accused changed his residence from Wakelekha villageto Webuye upon being suspected with the commission of the offences charged.The community is hostile because of the nature of the offences and the circumstances in which the same are alleged to have been committed. The report shows that the victims were members of the same family. This might be the reason for the hostility by the community.
6. Further to the foregoing, I have also considered the fact that the submission by Mr. Kibellion that the first accused has hitherto jumped bail. I am of the viewthat the personal security of the accused persons, the allegation of previous failure to adhere to bond terms and the likelihood of the accused not turning up for their trial due to the serious offences facing them, are compelling reasons which disentile the accused to bond.
7. Accordingly, the application for bond is hereby declined. The accused persons are to remain in custody during trial.
DATED and DELIVERED at Bungoma this 23rd day of July, 2014.
A. MABEYA
JUDGE