[2016] KEHC 65 (KLR)
The court found that, despite bond being a constitutional right, the collective opposition from the victim's family, the accused's wife, the community, and the area chief, as well as concerns for the accused's own safety and the security of the community, constituted compelling reasons to deny bond. The court relied...
Source-derived case information.
- Citation
- [2016] KEHC 65 (KLR)
- Parties
- Respondent: Republic; Applicant: Tinga Moturi Osumo
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 46 of 2015
- Procedural Posture
- Criminal Case / Ruling on Bond Application
- Outcome
- application for bond dismissed
- Judges
- CB Nagillah
- Legal Topics
- Bail and Bond, Compelling Reasons, Community Security, Victim Impact
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Tinga Moturi Osumo
Applicant
Procedural Posture
Criminal Case / Ruling on Bond Application
Legal Issues
- 1 Whether the accused is entitled to bond pending trial in light of the community, victim, and family attitudes.
- 2 Whether there are compelling reasons to deny bond as provided under Article 49(i)(h) of the Constitution.
Ratio Decidendi
The court found that, despite bond being a constitutional right, the collective opposition from the victim's family, the accused's wife, the community, and the area chief, as well as concerns for the accused's own safety and the security of the community, constituted compelling reasons to deny bond. The court relied on the bail assessment report, which detailed the risk of harm, potential for interference, and the accused's negative standing in the community. The court applied established principles for granting bail, including the likelihood of interference with witnesses, the accused's security, and the community's peace, and determined that the threshold for compelling reasons had been...
Court Disposition
application for bond dismissed
Orders
- The application for bond by the accused is dismissed.
- The accused shall remain in custody pending trial.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYAMIRA
HIGH COURT CRIMINAL CASE NO.46 OF 2015
REPUBLIC…………………………………………………………….STATE
-VERSUS-
TINGA MOTURI OSUMO………………………………………..ACCUSED
RULING
On the 1st day of February, 2015 Mr. Kaburi applied for bond for the accused person. The court called for a bail - assessment report to shade some light on the issue of bond in respect of the accused person.
The said report was filed on 2nd March, 2016.
The accused is married and is also a peasant farmer.
The victim attitudes: They are bitter for the loss but also express fears of an attack from the accused if he is released. They suggest that the accused should undergo full trial while in custody until the case reaches its logical conclusion.
Family attitude: The sister expressed acceptance and willingness to assist in soliciting for surety for bond. However, the wife expressed unwillingness to release him for fear of domestic violence she had suffered and which would persist if he is released.
The Community Attitude: they expressed unwillingness to have him return to the community as he participated in criminal groups harassing the community. They strongly expressed that he undergoes trial while in custody until the case reaches its conclusion. They consider him a threat to peace. The area chief also objected to his release. That he used to be the member of community policing but used it for anti-social activities and robbery and murder.
Conclusions :The community considers him a threat to peace. He is therefore considered unsuitable for bond at the moment and thus recommend that he undergoes trial while in custody for the sake of his own security and that of the community.
Bond is constitutional right as per article 49(i) (h), but it is not absolute, if there are compelling reasons, the same is denied.
In Republic .vs. Lucy Njeri Waweru and 3 others, Criminal case No.6 of 2013, at High Court, Nairobi, Justice F.N. Muchemiheld that in considering whether the court would grant bail, the established principles applicable were the following:
(a) Whether the accused person were likely to turn up for trial should he be granted bail,
(b) Whether the accused persons were likely to interfere with witnesses,
(c) The nature of the charge,
(d) The security of the accused if released on bond,
(e) The severity of the sentence
(f) In case of illness of the accused persons, the nature and severity of the illness and
(g) Whether the accused persons had fixed abode with the jurisdiction of the court.
In conclusion the court held that the prosecution established that the four accused persons were likely to interfere, influence and intimidate the key witness and were also at risk of harm from close family members of the deceased if bail were granted.
The application for bond was thus dismissed.
Findings and Determination
This court is of the view that because of the bitterness expressed by the victim family, by the wife and the community as a whole, through the chief, the accused person is not suitable for bond even for his own safety and security.
Accordingly, the application for bond be and is hereby dismissed.
Dated at Nyamira this 17th day of March, 2016.
C.B. NAGILLAH
JUDGE
In the presence of:
Kaburi for the accused person
Malesi for the respondent
Mercy - Court Clerk