[2014] KEHC 335 (KLR)
The court found that, despite the passage of time since the initial refusal of bail, the situation on the ground remained volatile, with the community still hostile towards the accused persons and a high risk of lynching if they were released. The pre-bail assessment report confirmed that the community was not ready...
Source-derived case information.
- Citation
- [2014] KEHC 335 (KLR)
- Parties
- Respondent: Republic; Applicant: Richard Onguti Ombati; Applicant: Devis Mongare Ayako
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 68 of 2013
- Procedural Posture
- Criminal Case / Ruling on Renewed Bail Application
- Outcome
- application for bond refused
- Legal Topics
- Bail Application, Compelling Reasons, Pre Bail Assessment, Murder Charge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Richard Onguti Ombati
Applicant
Devis Mongare Ayako
Applicant
Procedural Posture
Criminal Case / Ruling on Renewed Bail Application
Legal Issues
- 1 Whether the accused persons should be granted bail pending trial for the offence of murder.
- 2 Whether there exist compelling reasons to deny bail under Article 49(1)(h) of the Constitution.
Ratio Decidendi
The court found that, despite the passage of time since the initial refusal of bail, the situation on the ground remained volatile, with the community still hostile towards the accused persons and a high risk of lynching if they were released. The pre-bail assessment report confirmed that the community was not ready to forgive the accused and that their safety could not be guaranteed outside custody. These circumstances constituted compelling reasons under Article 49(1)(h) of the Constitution to deny bail. The court therefore declined to admit the accused persons to bail, but left open the possibility for them to renew their application at a future date should circumstances change.
Court Disposition
application for bond refused
Orders
- The application for bond is dismissed.
- The accused persons may renew their application at a future date.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CRIMINAL CASE NO. 68 OF 2013
REPUBLIC……………………………………….……….….………….PROSECUTOR
VERSUS
RICHARD ONGUTI OMBATI…………………………..................……..1ST ACCUSED
DEVIS MONGARE AYAKO……………......................................………2ND ACCUSED
RULING
1. This is an oral application by the accused persons to be freed on bond. They were charged for offence of murder contrary to section. 203 as read with section 204 of the Penal Code.
2. This would be the second such application. The first one was made earlier whose ruling the court delivered on 23rd July, 2007 whereby the court declined bond to the accused persons. The court however gave liberty to them to review their application for bond after, say, six months.
3. This application is therefore their applicants’ attempt to renew the said application.
4. The replying affidavit by the state is dated 7th day of June, 2013. In paragraph 7 thereof, the state avers that if the accused admitted to bail, their lives may be in danger as the situation on the ground is volatile. This court is unaware whether this volatility on the ground has subsided. The state, in response to the application on 5th November, 2014, the prosecutor stated that they have not filed their affidavit but then added, on the face of it, however, there is no opposition to bond. Unknown to themselves, the affidavit has always been on the file.
5. The pre-bail assessment report filed on 23rd September, 2014, the community abhors the memory of the incident and pray that the accused persons to continue being in custody for avoidance of occurrence of such an act as they are not ready to forgive the accused persons. Chances of them being lynched are considerably very high. Both of them are safe in custody. The state may not guarantee their safety.
6. Article 49(1)(h), admittedly makes the offence of murder bailable, compelling reasons preclude the court to do so. The affidavit of reply dated 7th of June, 2013 and the pre-bail assessment report recently filed, when the court thinks time enough has elapsed and subsided with it concomitant emotions on the ground. However, this is not so. The situation as described gives the court compelling reasons, yet again, to refuse admission to bail.
7. Accordingly, the application for bond fails. The accused persons are at liberty to renew their application at some future date.
8. It is so ordered.
Dated and delivered at KISII this 14th day of November, 2014
C.B. NAGILLAH,
JUDGE.
In the presence of:-
Magara holding brief for Soire for the applicant.
Majale for the state for the respondent
Edwin Mongare Court Clerk.