[2013] KEHC 1360 (KLR)
The court found that no new grounds had been presented since the previous ruling denying bail. The only change was that the witnesses feared to be interfered with had testified, but this was not the sole basis for the initial denial. The affidavits relied upon by the applicants were the same as previously considered...
Source-derived case information.
- Citation
- [2013] KEHC 1360 (KLR)
- Parties
- Applicant: Republic; Defendant: Sammy Nyamweya Nyaboga; Defendant: Alice Moraa Omwega
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 28 of 2013
- Procedural Posture
- Criminal Case / Ruling on Renewed Bail Application
- Outcome
- bail application declined
- Judges
- RPV Wendoh
- Legal Topics
- Bail Application, Murder Charge, Pretrial Release, Witness Interference, Risk of Absconding
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Sammy Nyamweya Nyaboga
Defendant
Alice Moraa Omwega
Defendant
Procedural Posture
Criminal Case / Ruling on Renewed Bail Application
Legal Issues
- 1 Whether the accused persons should be granted bail pending trial in light of previous denial and current circumstances.
- 2 Whether any new grounds have arisen to warrant review of the earlier bail ruling.
Ratio Decidendi
The court found that no new grounds had been presented since the previous ruling denying bail. The only change was that the witnesses feared to be interfered with had testified, but this was not the sole basis for the initial denial. The affidavits relied upon by the applicants were the same as previously considered and were found inadequate to assure the court that the accused would attend trial or that their security was guaranteed. The court emphasized that the right to bail is not absolute and must be balanced against the risk of absconding and the interests of justice. Given the priority hearing already accorded to the case and the lack of new evidence or circumstances, the court...
Court Disposition
bail application declined
Orders
- The renewed application for bail by the accused persons is declined.
- The case shall continue to be heard on a priority basis as previously ordered.
Full Case Text
Judgment text and source record
21 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CRIMINAL CASE NO. 28 OF 2013
REPUBLIC…………………………………………PROSECUTOR
VERSUS
SAMMY NYAMWEYA NYABOGA………..……....1ST ACCUSED
ALICE MORAA OMWEGA………………….……2ND ACCUSED
RULING
Sammy Nyamweya Nyaboga and Alice Moraa Omwega face a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. They applied to be released on bond before J. Emukule who was then seized of this matter. In a ruling dated 24/5/2013 the application was declined and the court ordered that the case be heard on priority basis for reasons inter alia, that the witnesses in the case were 2nd accused’s son and niece.
Counsel for the accused persons have made another application for bond for reasons that the bond was declined for fear of interference with witnesses but the said witnesses have now testified. Mr. Akango added that regarding the security of the accused persons, it is 3 months after the alleged murder and they are unlikely to be harmed if released.
Cpl. Elijah Njeru swore a further affidavit dated 22/7/2013 in which he depones that the 1st accused was a tenant of the deceased, he has no permanent employment, his home is unkown and is likely to abscond. As regards the 2nd accused, he deponed that she lived with the deceased in the home where the offence was committed, she is unlikely to go back there due to hostility of the community, she is unemployed and likely to abscond. The officer also deponed that there still exists animosity between the family of the 2nd accused and the deceased’s family.
The applicants have not sworn any further affidavit and nothing new has arisen since J Emukule delivered his ruling. The applicants are relying on the same affidavits which the judge considered in his ruling. The court considered the issue of likelihood of interference with the witnesses. The son and niece of the 2nd accused have indeed testified but that was not the only ground upon which bond was declined.
The court also considered the fact that there was no evidence that 1st accused owns a barber shop or that he operates a taxi or operates a motor cycle business. Further, the court considered the fact that there was no evidence of 2nd accused’s MPESA business and the court found the affidavits to be inadequate. One of the key considerations in such an application is that accused persons will turn up for trial. The court was not satisfied with the affidavits filed by the applicants’ counsel. The court also took into account the issue of the applicants’ security. No new grounds have been adduced.
This court is not being called upon to review J Emukule’s ruling and the judge in declining to grant bail ordered that the case be heard on priority basis and indeed the accused persons have been accorded a priority hearing. They were charged in March this year. Already evidence of five witnesses has been taken and the matter comes up for further hearing on 11/11/2013. Taking into account that cases of 2008 are still pending, this case has been heard speedily. No ground has been adduced to warrant this court reviewing the earlier ruling on bail and the same is declined.
DATED and DELIVERED this 4th day of October, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Kabita holding for the accused
Mr. Omutelema for the State
Kennedy - Court Assistant