[2011] KEHC 178 (KLR)
Although the Constitution entitles accused persons to bail unless compelling reasons exist, the application for bail was bare and lacked critical information regarding the accused's backgrounds, residences, occupations, and the potential impact of their release on the community and the deceased's relatives. The...
Source-derived case information.
- Citation
- [2011] KEHC 178 (KLR)
- Parties
- Applicant: Stephen Nyamai Mbalu; Applicant: Charles Muisyo Mwololo; Applicant: Alex Tama Muange; Applicant: Peter Muange Muanthi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 55 of 2011
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- Bail denied; accused to remain in custody pending trial.
- Judges
- GMA Dulu
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Murder Charge, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Nyamai Mbalu
Applicant
Charles Muisyo Mwololo
Applicant
Alex Tama Muange
Applicant
Peter Muange Muanthi
Applicant
Republic
Respondent
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused persons are entitled to bail pending trial for a charge of murder.
- 2 Whether there are compelling reasons to deny bail under Article 49(1)(h) of the Constitution.
Ratio Decidendi
Although the Constitution entitles accused persons to bail unless compelling reasons exist, the application for bail was bare and lacked critical information regarding the accused's backgrounds, residences, occupations, and the potential impact of their release on the community and the deceased's relatives. The absence of witness statements and other relevant details left the court without sufficient assurance that the accused would not abscond or that their release would not endanger their own safety or public order. The court found these uncertainties to constitute compelling reasons to deny bail, prioritizing both the risk of absconding and the applicants' own security pending trial...
Court Disposition
Bail denied; accused to remain in custody pending trial.
Orders
- The application for bond/bail is declined.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CRIMINAL CASE NO. 55 OF 2011
REPUBLIC
VERSUS
1. STEPHEN NYAMAI MBALU
2. CHARLES MUISYO MWOLOLO
3. ALEX TAMA MUANGE
4. PETER MUANGE MUANTHI ……..… ACCUSED/APPLICANTS
R U L I N G
On 14th November 2011 all four Accused pleaded not guilty to a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code (Cap 63 Laws of Kenya). After the plea, Mr Mung’ata, the learned counsel for the Accused informally applied for bail. The learned State Counsel Mr Mukofu informed the court that he did not have compelling reasons to object to the request for bail.
Indeed, under Article 49 (1) (h) of the Constitution of Kenya it is provided as follows:-
“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.”
The above provisions in the Constitution of Kenya, which was promulgated on 27th August 2010, changed the previous situation where bail was available only to persons who were charged with offences other than capital offences.
Counsel on both sides have not given any suggestion on what conditions they consider to be reasonable for the release of the Accused persons on bail. In my view, though the Constitution entitles the Accused to be released on bond pending hearing of their case, the court is enjoined to consider whether there are compelling reasons not to release them on bond.
The court has not been given any information as to where the Accused come from. Their occupations and conduct or demeanour has not been given. It is not known whether they will live in the neighbourhood of the deceased after they are released on bond or whether such release will be a peaceful encounter with relatives of the deceased while awaiting trial, taking into account that a person has already died. There are also no witness statements filed that would give the court a picture of what transpired. In short, though the Applicants are entitled to bail, the application is bare and open ended.
In my view, with the facts available to me, it is preferable for the Accused to remain in custody, both as an insurance against their possible absconding as well as for their own safety and security. I find these to be compelling reasons to deny them bail.
Consequently, I decline to grant the bond/bail requested.
Dated and delivered at Machakos this 15th day of December 2011.
George Dulu
Judge
In presence of:-
For the Accused/Applicants: Ms. Ombega holding brief for Mr Mung’ata
For State: Mr Mwenda
Court clerk:Nyalo