[2012] KEHC 2781 (KLR)
The court found that while there had been delay in the proceedings, the reasons for the delay were partly due to the overstretched government chemist and the court's own annual leave, and did not amount to an abuse of process justifying dismissal of charges. Instead, the court determined that the appropriate remedy...
Source-derived case information.
- Citation
- [2012] KEHC 2781 (KLR)
- Parties
- Respondent: Republic; Defendant: Zabibu Kahindi Makapu
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Criminal Case 26 of 2010
- Procedural Posture
- Criminal Case / Ruling on Bail Application Pending Trial
- Outcome
- Accused released on personal bond with surety; trial to proceed on scheduled dates.
- Judges
- CW Meoli
- Legal Topics
- Bail Application, Pretrial Release, Delay in Trial
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Respondent
Zabibu Kahindi Makapu
Defendant
Procedural Posture
Criminal Case / Ruling on Bail Application Pending Trial
Legal Issues
- 1 Whether the delay in prosecution warrants dismissal of charges against the accused.
- 2 Whether the accused should be released on bail pending trial.
Ratio Decidendi
The court found that while there had been delay in the proceedings, the reasons for the delay were partly due to the overstretched government chemist and the court's own annual leave, and did not amount to an abuse of process justifying dismissal of charges. Instead, the court determined that the appropriate remedy was to grant the accused bail on reasonable terms, ensuring her attendance at trial and balancing the interests of justice. The accused was therefore released on a personal bond with a surety, and placed in the care of her uncle, as an alternative to the drastic measure of dismissing the charges.
Court Disposition
Accused released on personal bond with surety; trial to proceed on scheduled dates.
Orders
- The accused is to be released on a personal bond of KES 200,000 and one surety in the same amount.
- The accused's uncle, Frederick Mwarabu, to execute a personal bond and take the accused into his care.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CRIMINAL CASE 26 OF 2010
REPUBLIC ………………………………………PROSECUTOR
VERSUS
ZABIBU KAHINDI MAKAPU -----------------------------ACCUSED
R U L I N G
Having considered the application by Ms. Otieno on behalf of the accused, and the response of the State, along with the ruling of this court delivered on 320th June, 2011, I do agree that there has been delay since 10th may, 2011 when the last witness (PW9) testified.
Delay was in part occasioned by the absence of the government chemist, who is understandably over stretched in terms of examination of exhibits, and also the fact that this court was on annual leave on 24th April, 2012 when this matter was expected to next resume.
I do not however accept the defence submission that the only cure for the delay is to dismiss the charges against the accused. That would be drastic in the circumstances of this case.
Instead, bearing in mind all relevant matters, I would make the following order:
The accused is to be released on a personal bond of shs. 200,000/- and one like surely in the same amount. Her uncle Frederick Mwarabu named in the Probation Report of 24th May, 2011 and who is present today in court to execute a personal bond in like amount and the accused be released into his care, as he has promised to take her in and to ensure she attends court.
Case now for hearing on 10th and 11th October, 2012.
C. W. MEOLI
JUDGE
Delivered and signed this 17th May, 2012 in the presence of the accused, Ms. Otieno for her, Mr. Naulikha for State.
Court clerk – Evans/Leah
C. W. MEOLI
JUDGE