[2020] KEHC 5166 (KLR)
The court held that the right to bail is constitutionally guaranteed under Article 49(1)(h) and may only be denied if the prosecution demonstrates compelling reasons. The prosecution's reliance on the seriousness of the charge and potential sentence was insufficient, as these factors alone do not meet the threshold...
Source-derived case information.
- Citation
- [2020] KEHC 5166 (KLR)
- Parties
- Respondent: Republic; Applicant: Wycliffe Mogaka Ongeri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 12 of 2020
- Procedural Posture
- Bail Application / Ruling on Bail Pending Trial
- Outcome
- bail granted
- Judges
- DO Ogembo
- Legal Topics
- Bail Pending Trial, Compelling Reasons, Presumption of Innocence, Witness Interference
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Wycliffe Mogaka Ongeri
Applicant
Procedural Posture
Bail Application / Ruling on Bail Pending Trial
Legal Issues
- 1 Whether the accused is entitled to bail pending trial under Article 49(1)(h) of the Constitution.
- 2 Whether the prosecution has demonstrated compelling reasons to deny bail, specifically the seriousness of the charge and risk of witness interference.
Ratio Decidendi
The court held that the right to bail is constitutionally guaranteed under Article 49(1)(h) and may only be denied if the prosecution demonstrates compelling reasons. The prosecution's reliance on the seriousness of the charge and potential sentence was insufficient, as these factors alone do not meet the threshold for compelling reasons. Furthermore, the prosecution failed to provide any evidence of actual or perceived interference with witnesses by the accused. The court emphasized that unsupported allegations cannot justify denial of bail. Consequently, the prosecution did not discharge its burden of proof, and the accused was entitled to bail on specified terms.
Court Disposition
bail granted
Orders
- Accused may be released on a bond of Ksh.500,000 with one surety of a similar amount.
- Accused shall deposit a cash bail of Kshs.100,000.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL CASE NO. 12 OF 2020
REPUBLIC........................................................................................................................DPP
VERSUS
WYCLIFFE MOGAKA ONGERI........................................................................ACCUSED
RULING
This matter has now come up for the hearing of the application of the accused WYCLIFE MOGAKA ONGERI, dated 17. 4.2020. the seeks that the applicant be admitted to bail pending the trial and determination of his case. An affidavit of the advocate for the applicant is attached to the applicant in support of the same. In the short submissions, counsel for the applicant submitted that bail is a constitutional right under Article 49(1)(h) of the constitution and that the accused is presumed innocent till proven guilty. Further that he had cooperated fully with the investigators was the sole breadwinner of his young family.
Counsel went on that there is no evidence that accused has interfered with any witnesses, and that he undertakes to attend his hearings.
In opposing bail, counsel for the state (Ms. Onunga) submitted that the court ought to consider the serious nature of the offence and the likely sentence in case of conviction. Secondly, that since accused and the witnesses hail from the same locality, he is likely to interfere with the witnesses. She otherwise pleaded for strict terms of bail should the court rule on his favour.
I have considered the submissions of both sides. This is an application for bail pending trial. Under Article 49(1)(h), an accused person has the right to be placed on bail pending hearing and determination of his case. The proviso to this is that the right to bail may be denied if the prosecution side can prove the existence of any compelling reason. The burden to prove the existence of such compelling reason is on the prosecution side.
In this case, the prosecution has based its arguments, first on the fact that accused is facing a serious charge which attracts a stiff sentence in case of conviction. There is no doubt that the accused indeed faces a serious charge. It is a charge of murder contrary to section 203 of the Penal Code. And the charge also attracts stiff sentence in case of conviction. But can this alone lead to denial of accused of the right to bail? I think not. As stated above, the constitution (Article 49(1)(h), guarantees the right to bail to all accuseds irrespective of the charges they are facing. This ground therefore, taken in isolation cannot constitute a compelling reason good enough to make this court deny the accused the constitutional right to bail.
Secondly, the prosecution has submitted that accused is likely to interfere with witnesses if released on bail. The prosecution has however, failed to show any evidence of real or perceived interference with any of the prosecution witnesses from the side of the accused. This court in HCCR No. 10 of 2020, republic versus Lucy Waithera Njuguna and John Hari Gakinya held that for this ground to succeed, the prosecution must demonstrate actual or perceived interference. See also the holding the Hon. Lesiit J, in Republic Versus Richard David Alden (2016)eKLR, that failure to show evidence of such interference would be tantamount to asking the court to speculate.
As it is, the prosecution has not shown any evidence of interference or perceived interference with the witnesses. The allegation of the prosecution therefore remains totally unproven and cannot stand as a compelling reason. I accordingly dismiss this objection.
The sum total is that the prosecution has not succeeded in proving any compelling reason that would persuade this court to deny the accused the right to bail. I dismiss the prosecution’s objection and order that the accused may be released on bond on the following terms:-
(i) Accused may be released on a bond of Ksh.500,000/= with 1 surety of a similar amount.
(ii) In addition, accused shall deposit a cash bail of Kshs.100,000/=
(iii) The accused is ordered never to contact and or interfere with any prosecution witnesses, whether directly or through any proxy or agent.
(iv) He is ordered to attend court at all times for the hearing of his case or as may be ordered from time to time by the court till this case is determined.
D. O. OGEMBO
JUDGE
5. 6.2020
Court:
Ruling read out in open court in presence of the applicant, Ms. Odembo for the applicant and Mr. Okeyo for the state.
D. O. OGEMBO
JUDGE
5. 6.2020