[2014] KEHC 4430 (KLR)
The court found that, under Article 49(1) of the Constitution, the accused is entitled to bail unless compelling reasons are shown. The only opposition to bail was from the victim's family and clan, who remain traumatized and unreconciled. However, the court determined that this opposition, without further...
Source-derived case information.
- Citation
- [2014] KEHC 4430 (KLR)
- Parties
- Applicant: Republic; Respondent: Wilberforce Kirui
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Judgment Date
- 20 June 2014
- Case Number
- Criminal Case 12 of 2014
- Procedural Posture
- Criminal Case / Bail Application Pending Trial
- Outcome
- Bail granted to the accused pending trial.
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Constitutional Rights, Murder Charge
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Wilberforce Kirui
Respondent
Procedural Posture
Criminal Case / Bail Application Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(1) of the Constitution.
- 2 Whether there exist compelling reasons to deny the accused bail pending trial.
Ratio Decidendi
The court found that, under Article 49(1) of the Constitution, the accused is entitled to bail unless compelling reasons are shown. The only opposition to bail was from the victim's family and clan, who remain traumatized and unreconciled. However, the court determined that this opposition, without further compelling reasons such as risk of flight, interference with witnesses, or threat to public order, was insufficient to deny bail. The court also considered the welfare of the accused's children, who are about to sit for their national exams and are currently under the care of their elderly grandfather and a herds boy. Balancing these factors, the court concluded that there were no...
Court Disposition
Bail granted to the accused pending trial.
Orders
- The accused, Wilberforce Kirui, shall be released from custody upon signing a bond of Kshs.300,000 with one surety of like sum.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CRIMINAL CASE NO. 12 OF 2014
REPUBLIC................................................PROSECUTOR
VERSUS
WILBERFORCE KIRUI.....................................ACCUSED
RULING
WILBERFORCE KIRUI is before this court on trial for a charge of murder contrary to Section 203 as read with Section 204 of the Penal Code. Pending the hearing and determination of the case the accused has now applied to be admitted to bail/bond pending trial vide the Motion dated 13th May 2014. The Motion is taken out pursuant to the provisions of Article 49 (1) of the Constitution. The Motion is supported by the affidavit of Onesmus Lang'at, the defence counsel.
It is the submission of Mr. Langat that the right to bail is enshrined in the Constitution and since there are no compelling grounds the accused should be released on bail. Miss. Kivali, learned prosecution counsel informed this court that the office of the Director of Public Prosecutions had no compelling reasons to oppose the application. The court with abundant caution called for a pre-bail Probation report on the accused. I have perused the Probation Report filed by the Probation Officer, Bureti District shows that the victim's family are still traumatised hence not ready to reconcile with that of the accused. In the report, it is indicated that both the clan of the victim and that of the accused are opposed to the accused being released on bond pending trial. The accused's family and the area assistant chief are not opposed to the accused being admitted to bail/bond.
Under Article 49(1) of the Constitution, an accused person is entitled to bail/bond pending trial and can only be denied such a right if compelling reasons are shown to exist. The constitution does specify what can be said to be compelling reasons. It was left to the discretion of the court to determine. In the statement of the offence, the particulars of the offence are that on the night of 16th and 17th March 2014 at [particulars withheld] village in Bureti District, the accused is alleged to have murdered Faith Chepngeno Kirui. The deceased is the accused's wife. The couple appears were blessed with three children namely D K, D K and D C. The trio are all in class 8 at [particulars withheld] Academy and are expected to do their Kenya Certificate of Primary Education exams (K.C.P.E) towards the end of this year. The accused's family are of the view that the children need their father (accused) at this critical moment of their lives. Those children are under the care of the accused's elderly father and the accused's herds boy. Apart from the protestation of the deceased's and the victim's clan, there is no other compelling reasons given to enable this court deny the accused the right to bail. I hereby order that the accused be admitted to bail/bond pending trial. I order that Wilberforce Kirui be released from custody upon signing a bond of Kshs.300,000 with one surety of like sum.
Dated, Signed and delivered in open court this 20th day of June, 2014.
....................
J.K.SERGON
JUDGE
In the presence of:
Miss. Kivali for Director of Public Prosecutions
Mr. Mutai holding brief for Mr. Langat for Accused