[2017] KEHC 1166 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NANYUKI

CRIMINAL CASE NO. 11 OF 2017

REPUBLIC.............................................PROSECUTOR

Versus

SAMUEL CHEGE NDEGEA....................1st ACCUSED

AMOS WAINAINA WILLIE...................2nd ACCUSED

GLADYS WAIRIMU MAHINDA.............3rd ACCUSED

GEORGE WAWERU KINYANJUI...........4th ACCUSED

RULING

1. SAMUEL CHEGE NDEGEA(1st accused ), AMOS WAINAINA WILLIE (2ndaccused), GLADYS WAIRIMU MAHINDA(3rd accused) and GEORGE WAWERU KINYANJUI (4th accused) are charged with the offence of murder. They all pleaded not guilty. They seek bail pending trial.

2. Article 49 (1) (h) provides that an arrested person has the right:-

“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. Justice John M Mativo in the case: REPUBLIC V DANFORND KABAGE MWANGI [2016] eKLRdiscussed the provisions of the afore stated article and held:

“I hold the view that after considering the circumstances of each case, the court has discretion to grant or refuse bail provided that the discretion is exercised judicially. In Republic vs Milton Kabulit & 60 others [10]Justice Emukulein a well-reasoned decision said:-

“My understanding of Section (sic) 49 (1) (g) (h) is firstly, that the right of an arrested person to bond or bail in respect of any offence is solely at the discretion of the court seized of the application. Secondly, the only accused entitled to a right to an automatic bond or bail are those charged with offences (which may be referred to as “petty offences”) the punishment of which {if found guilty and convicted} is either a fine only, or imprisonment for a term of less than six months”.

4. The Learned Judge in that case REPUBLIC - V – DANFORND (supra) also considered conditions that would lead to denial of bail and had this to say:-

“The “relevant and sufficient” reasons which may permit the accused to be remanded in custody rather than being granted bail (also known as the “grounds for refusing bail”) are limited to: Risk that the accused will fail to appear for trial if they are released on bail:

i. Risk that the accused will interfere with the course of justice while on bail(e.g. that he will destroy evidence that could be used against them at their trial or that they could interfere with witnesses who are due to give evidence a their trial):

ii. Risk that the accused will commit further offences while on bail;

iii. The accused would be at risk of harm (from himself/herself or from others) against which they would be inadequately protected if released on bail; or

iv. Risk to the preservation of public order if the accused is released on bail”.

5. To aid the court in determining the accused’s application for bail I requested the probation office to prepare pre-bail reports.

6. The probation report on the 1st accused revealed that he is 43 years old, married with three children who are 12, 8 and 3 years old. He is the sole bread winner of the family. He has resided at Imenti village Sirima Location for 28 years. The probation officer was positive in his recommendation of the 1st accused being released on bail.

7. The 2nd accused, according to the probation report is a 58 year old family man. He is a father of four children who all depend upon him. The community at Imenti village, Sirima Location is positive with his release on bail.

8. The 3rd accused as per the probation report is a lady who is a mother and wife. She has a fixed abode. She has an upright character within her community and her community is positive on her release on bail.

9. The 4th accused is an administration police officer. He is described in the report as a person of good character. The community where he lives has no objection with released on bail.

10. The Principal Prosecution Counsel Mr. Tanui did not oppose the bail applications but sought the bail terms be reasonable bearing in mind the offence accused face.

DETERMINATION

11. The accused person have a constitutional right to bail. There being no compelling reason why bail should not be granted, I order each accused to be released on their own bond of Ksh. 500,000 with two sureties of equal amount for each accused.

Dated and Delivered at Nanyuki this 20th day of December, 2017

MARY KASANGO

JUDGE

Coram

Before Justice Mary Kasango

Court Assistant: Njue/Mariastella

1st Accused : ……………………………………..

2nd Accused: ………………………………

3rd Accused: …………………………........

4th Accused: ………………………………

For state: ……………………………………

For 1st 2nd and 3rd accused ………………

For 4th accused …………………………….

Language ……………………………………

COURT

Ruling delivered in open court

MARY KASANGO

JUDGE