[2021] KEHC 3784 (KLR)
The court found that the applicants had not been shown to be flight risks and that there was no evidence or submission to the contrary. The right to reasonable bond terms is protected under Article 49(1)(h) of the Constitution, and the court must balance the liberty of the accused with the need to secure their...
Source-derived case information.
- Citation
- [2021] KEHC 3784 (KLR)
- Parties
- Respondent: Republic; Applicant: Simon Kariuki; Applicant: James Kinyua Mwangi; Defendant: Alex Akosa Saina alias Aleki; Defendant: Fredrick Risa Kosen alias Freddy
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 35 of 2017
- Procedural Posture
- Criminal Case / Ruling on Review of Bond Terms
- Outcome
- Bond terms for the 1st and 2nd applicants reviewed and reduced.
- Judges
- MC Kesse
- Legal Topics
- Bail and Bond, Presumption of Innocence, Flight Risk, Reasonable Conditions
- 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
Respondent
Simon Kariuki
Applicant
James Kinyua Mwangi
Applicant
Alex Akosa Saina alias Aleki
Defendant
Fredrick Risa Kosen alias Freddy
Defendant
Procedural Posture
Criminal Case / Ruling on Review of Bond Terms
Legal Issues
- 1 Whether the bond terms previously set were reasonable in light of the applicants' circumstances.
- 2 Whether the applicants are entitled to a reduction of bond terms under Article 49(1)(h) of the Constitution and Section 123(3) of the Criminal Procedure Code.
- 3 Whether the applicants pose a flight risk justifying stringent bond terms.
Ratio Decidendi
The court found that the applicants had not been shown to be flight risks and that there was no evidence or submission to the contrary. The right to reasonable bond terms is protected under Article 49(1)(h) of the Constitution, and the court must balance the liberty of the accused with the need to secure their attendance at trial. The previous bond terms were found to be unnecessarily stringent given the applicants' inability to afford them and the lack of evidence suggesting they would abscond. The seriousness of the offence justified the imposition of a surety but not the maintenance of unaffordable bond terms. Accordingly, the court exercised its discretion to reduce the bond to Kshs....
Court Disposition
Bond terms for the 1st and 2nd applicants reviewed and reduced.
Orders
- The bond terms granted on 21/9/2017 are set aside.
- The 1st and 2nd applicants are admitted to a bond of Kshs. 500,000 with one surety of a similar amount each.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAROK
CRIMINAL CASE NO. 35 OF 2017
(CORAM: F.M. GIKONYO J.)
REPUBLIC
-VERSUS-
SIMON KARIUKI...................................................1ST ACCUSED
JAMES KINYUA MWANGI..................................2ND ACCUSED
ALEX AKOSA SAINA ALIAS ALEKI.................3RD ACCUSED
FREDRICK RISA KOSEN ALIAS FREDDY......4TH ACCUSED
RULING
Review of Bond Terms
1. On 21/9/2017 the accused persons were granted bail of one million shillings with a surety of a similar amount.
2. On the 15th July 2021, the 1st and 2nd accused persons through their defence counsel Ms. Nkurunah orally applied for reduction of bond on the ground that they cannot raise the bond as granted. They beseeched the court to grant favourable bond terms. They further argued that they have always been ready to proceed with their case.
3. The prosecution opposed the request for reduction of bail on the ground that the bond terms were reasonable given the seriousness of the offence. Ms. Torosi further stated that all accused in the same case should be given similar bond terms.
4. In rejoinder, the Applicants submitted that they should not suffer due to adjournments by prosecution.
ANALYSIS AND DETERMINATION
5. The court has the power to review bond and bail conditions pursuant to Section 123(3) of the Criminal Procedure Code. The bond terms set out against the Applicants are Kshs. 1,000,000/- bond with a surety of a similar amount. The Applicants were charged alongside two others and the two are the only ones in remand.
Reasonable conditions
6. Under Article 49(1) (h) of the Constitution, the accused is entitled to be released on bond on reasonable conditions. There is little point in attempting to ascribe any specific measure or prescription for ‘’reasonable conditions’’, for in one case, ‘’reasonable conditions’’ may entail a cash bail of a certain amount or other; while in another case a personal bond with or without surety is sufficient. A free bond with or without conditions may also be ‘’reasonable conditions’’ in some cases. Therefore, ‘’reasonable conditions’’ for purposes of article 49(1)(h) of the Constitution should be determined in light of the circumstances of each case. Nevertheless, any conditions imposed should be capable of securing the liberty of the accused, on the one hand, and guaranteeing his attendance in the trial, on the other hand. The latter secures the integrity of the trial and the rights of the victims of the crime; and is not the lesser.
7. It is not lost to the court that the accused enjoys the right to presumption of innocence until otherwise proved. The prosecution, unless it is demonstrated that he is flight risk, affordable bond terms should be granted. It is a cardinal principle that the main factor for consideration in granting an accused bail is that he would at all times attend the trial. I have not seen an indication that the Applicants are flight risk. It also was never submitted before this court as much. There is no reason in the circumstances to grant stringent terms of bond which the Applicants cannot afford. Further, owing to the seriousness of the offence, the bond terms must be attached to a condition so as to ensure that the Applicants attend court. Cash bail may not be the best option in the circumstance.
8. In the upshot, I set aside the bond terms granted on 21/9/2017 and substitute them with an order that the 1st and 2nd Applicants be admitted to a bond of Kshs. 500,000/= with one surety of a similar amount each. The surety be approved by the Deputy Registrar. The accused persons to attend court as and when required.
DATED, SIGNED AND DELIVERED AT NAROK THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 28TH DAY OF SEPTEMBER, 2021
----------------------
F. GIKONYO M.
JUDGE
In the presence of:
1. All accused persons
2. M/s Nkuruna for 1st and 2nd accused
3. Ms. Nkuruna holding brief for Ms. Martim for 3rd accused and Mr. Onduso for 4th accused.
4. Mr. Kasaso – CA
---------------------
F. GIKONYO M.
JUDGE